California Officials Take Key Step Toward Interstate Marijuana Commerce, Requesting Legal Opinion on Federal Risk!
Officials in California want to know if the attorney general’s office has an official position on whether or not legalizing marijuana sales across state lines will result in a “substantial risk” of federal enforcement action.
A statute enacted by Governor Gavin Newsom (D) last year authorizes him to enter into agreements with other legal jurisdictions to import and export marijuana goods, and a request for guidance from the Department of Cannabis Control (DCC) is a crucial step that might eventually trigger this law.
A provision of that statute states that no such agreements may be made until either federal law is changed to permit the commerce or federal guidance is implemented enabling the commerce or the state attorney general certifies that there would be no significant risk in doing so.
The letter was addressed on Friday by DCC General Counsel Matthew Lee and DCC Director Nicole Elliott to the office of California Attorney General Rob Bonta (D). The report includes an eight-page analysis detailing why the state is likely to avoid federal legal concerns by allowing cannabis sales across state lines.
Here’s the Language of The Opinion the Officials Are Seeking:
“Whether state law authorization pursuant to chapter 25 of Division 10 of the Business and Professions Code for medicinal or adult-use commercial cannabis activity or both between out-of-state licensees and California licensees will result in a significant legal risk to the State of California under. the federal Controlled Substances Act.”
The letter states that Congress cannot tell a state to legislate one way or another regardless of federal policy because of the anti-commandeering prohibition in the U.S. Constitution. This “immunizes” California from federal prosecution for its commercial cannabis regulation laws.
In cases like this one, “this holds true where, as here, the action to be approved under state law involves interstate commerce,” the document reads. There is no connection between the importance of federal interest and the effectiveness of the “anti-commandeering rule.”
That Congress can legislate and pass federal laws barring anyone from engaging in marijuana-related activity, whether it be simple possession or shipping marijuana over state lines as part of an interstate commerce agreement, was highlighted by the authorities.
Apart from the repercussions for private individuals and enterprises, the question is whether enabling interstate cannabis commerce to operate under California law would put the state itself in serious danger.
Moreover, DCC said in its letter that states and officials who implement restricted substance laws and municipal bylaws are explicitly immune from liability under the federal Controlled Substances Act (CSA).
They argued that the section was too vague and included state legislation that legalized and regulated federally illegal substances as though they were allowed under state law. This simple interpretation has been affirmed by the courts.
As for their third point, they point to a congressional appropriations rider that has been in place for quite some time and forbids the Justice Department from using its funding to interfere with the execution of state medical cannabis programs.
It says that private individuals are also shielded “if they use, distribute, possess, or cultivate therapeutic cannabis in accordance with state law” (though courts are split on how tightly individuals must adhere to state law in order to benefit from this protection).
“At its essence, the rider precludes the United States Department of Justice from ‘taking legal action against the state,’ which is not contested. As a result, the Rohrabacher-Farr/Blumenauer Amendment provides California with even more protection from “substantial” legal risk in regard to agreements including medical cannabis.
We do not consider the existence of the Rohrabacher-Farr/Blumenauer Amendment to be dispositive because, as we have already explained, we believe that an agreement under SB 1326 would not pose a significant legal risk to the State under the Controlled Substances Act even if the Amendment did not exist.
Nonetheless, the Rohrabacher-Farr/Blumenauer Amendment further protects the State from any potential legal danger associated with medicinal cannabis agreements, lending credence to the claim that these pacts pose no “substantial” risk to the State.
The Commerce Clause is briefly discussed as well, as it prevents states from enforcing laws that unnecessarily restrict interstate commerce unless instructed to do so by Congress.
Last year, a federal appeals court decided that a Maine statute preventing non-residents from holding medicinal marijuana businesses in the state violated that fundamental principle. Authorities are divided on whether or not state laws prohibiting the import or export of marijuana are also unconstitutional because of the same reasoning that rendered residence limitations null and void.
Restricting the movement of medicinal cannabis between jurisdictions where its use is legal and those that do not run the risk of being seen as unconstitutionally protectionist.
An Oregon marijuana company claimed in federal court last November that the state’s prohibition on shipping marijuana to and from other states is unconstitutional.
Not only is California the only state to have legalized the interstate sale of cannabis, but it is also the only one to allow the governor to enter into such agreements with merely the approval of the state attorney general. The other states passed laws that solely rely on federal regulation of interstate commerce.
Recently, a committee in the Washington State Senate gave its stamp of approval to a plan that would legalize marijuana sales across state lines.
In 2019, Oregon took the first step toward legalizing cross-border marijuana sales when Democratic Governor Kate Brown signed a bill into law.
A similar plan was introduced by the president of the New Jersey Senate last year, but it has not yet become law.
In an interview with Marijuana Moment published on Monday, Adam Smith, founder of the Alliance for Sensible Markets, referred to the recent action taken by California regulators as “a California Earthquake,” claiming that they “made a strong and cogent argument in favor of an opinion of ‘no additional legal risk,'” essentially writing the opinion for the” attorney general.
The letter challenges “the economically irrational and unsustainable state silo model that has caused so much harm to patients, consumers, and the industry, particularly to small farms and businesses and legacy operators who have done everything right to get legal but now face a politically created economic crisis,” he said.