As states slowly but inevitably continue to legalize cannabis medically or recreationally, we often need to be reminded that cannabis is still illegal on the federal level. Due to this widespread, ineffective prohibition, the cannabis industry and its many operators must follow a very extensive and strict set of parameters to ensure that they remain compliant on the state level. Because cannabis is illegal federally, technically every action and transaction of the American cannabis industry is violating federal law. However, there are numerous clauses added to various federal bills in recent years that provide theoretical legal protections, which ensure fully state compliant cannabis businesses won’t face the wrath of federal authorities. That is, as long as they do remain fully state compliant.
Local legislative and litigation strategies on interstate cannabis commerce
One of the notable examples of these limitations is the legacy policy to ban interstate cannabis deliveries and sales. Regardless of what state one currently resides in — even a cannabis mecca such as California that’s entirely surrounded by legal cannabis states — it’s still against federal law to transport cannabis of any kind cultivated and sold in California across state lines. Once state lines are crossed in the commission of any offense, the transportation is an additional federal offense. It is not necessarily any more or less a federal offense than any other act in manufacturing and delivery. However, from a policy standpoint, this has always been avoided because it is one of the prohibited activities listed under the rescinded Cole memo.
Still though, this strict prohibition doesn’t stop various cannabis operators and professionals from attempting to somehow overturn the very far-reaching and decades-old federal illegality of cannabis with a single state-level lawsuit. In November of 2022, Oregon cannabis distribution company Jefferson Packing House sued a number of power state officials, everyone from then-Governor Kate Brown to Attorney General Ellen Rosenbum and even the Interim Executive Director of the Oregon Liquor and Cannabis Commission Craig Prins. The goal of this lawsuit was initially to overturn a state ban on interstate cannabis commerce based on an interpretation of the U.S. Constitution’s commerce clause.
“We recognize that marijuana is still illegal under federal law, and that this lawsuit will not change that fact,” the company said in a letter to state officials when the suit was filed. “However, we believe that the State of Oregon should be fully aligned with supporting its local marijuana industry, and therefore that Oregon law should no longer prohibit the export of marijuana to other states.”
On paper, the lawsuit sounds like the logical next step for Oregon, which passed the 2019 law Senate Bill 582, that allows for “The Governor, or the Governor’s designee, to enter into an agreement with another state for the purpose of cross-jurisdictional coordination and enforcement of marijuana-related businesses licensed to conduct business in either this state or the other state.” In the 2019 Legislative Session, SB 582 passed by a considerable margin of 43-16.
Oregon has always certainly been progressive with their legislation, but this bill passed nearly five years ago was undeniably groundbreaking and other states have since followed suit. Even if the bill was entirely dependent upon a long held federal law being reformed by a governmental body that is stubborn towards cannabis reform at best, the bill still sent the message that legal state operators are ready for interstate operations and commerce should the federal policy change.
While the Jefferson Packing House lawsuit did have relevant pieces of prior litigation and legislation to cite, the lawsuit was voluntarily withdrawn from the United States District Court of Oregon by the Jefferson Packing House party themselves towards the end of January.
“Plaintiff Jefferson Packing House, LLC hereby provides notice of its voluntary dismissal of the above captioned matter, without prejudice.”
Partially due to the legislative weight and the all-encompassing reach of federal law and due to previous cases that proved that the commerce clause protections don’t include the hundreds of legally operating cannabis businesses due to the federal prohibition, it seems that Jefferson Packing House decided this would be the best legal course of action.
Time for a new approach
The most disheartening issue regarding interstate commerce is the lack of political will on the part of the legislatures that have legalized cannabis. The industry should not need to sue the government. The government should be treating the industry like a partner. And in particular, a partner in crime. The keys to saving the cannabis markets on the West Coast is allowing the industry to export to other markets. The Cole Memorandum, which has been completely rescinded, is an imaginary constraint. If every act is a federal crime, and the states are already deeply embedded co-conspirators, the least thing legislature could do is give the industry a fighting chance to succeed. As it stands, by not acting, the legislature has created a revolving door of failure.
Although it’s not directly related to this specific case involving Jefferson Packing House in Oregon, the Boston University Law Review published a very thought-provoking and thoroughly researched report in 2021 that criticized the federal ban on interstate cannabis commerce from a heavily legal and economic standpoint that is certainly worth reading.
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