Marijuana Legalization is Growing Like Kudzu

Georgia is set to join the 23 states and the District of Columbia that legalized what is called medical marijuana. The Georgia Assembly passed Haliegh’s Hope Act near the end of its recent session. Haliegh’s Hope Act legalized under state law the use and possession of “low THC oil” to treat certain conditions and for medical research. The Act is on the Governor’s desk and the Governor is expected to sign it into law.

The fight over marijuana legalization invokes images, such as:

pot combo 1

Spin set aside, legalization at the state level creates a conflict with federal law because federal law still criminalizes marijuana regardless of the intended use. The fuel for the legalization movement came in 2009, when the federal government took a hands-off approach to medical marijuana used under state law.  The feds loaded its announcement with caveats that the feds still can enforce the federal laws that criminalize marijuana.

Existing case law is that federal drug laws trumps state laws legalizing medical marijuana. As a result, banks, for example, resist knowingly doing business with them because of federal drug, money laundering, and RICO laws. Anyone else who does business with the marijuana operations faces similar risks, regardless of the state law.

The spreading of legalization has spurred new court challenges over the conflict between federal law barring marijuana and state laws permitting marijuana use.  The states of Oklahoma and Nebraska sued Colorado over its marijuana legalization in late 2014. A group of sheriffs from Colorado, Nebraska, and Kansas filed a separate suit in 2015 against Colorado over the state laws permitting marijuana.

Individuals are getting into the act, too.  Debtors who filed for bankruptcy in Colorado had their case tossed because the debtors wanted to use their medical marijuana business to fund the bankruptcy plan. The bankruptcy court rejected the case because the bankruptcy trustee cannot use illegal income to fund a plan, and a medical marijuana business remains illegal under federal law. The debtors appealed their case to the 10th Circuit Court of Appeals, arguing that the feds hands-off approach means the trustee can use the medical marijuana income to fund a bankruptcy plan. That case remains pending.

An earlier blog post (Dude, Pass the Chips) discussed a case pending in Colorado over whether an employee can sue his employer for wrongful termination after the employee failed a drug test because the employee used medical marijuana as allowed by state law. The Colorado Court of Appeals answered “no” and the employee took the case to the Colorado Supreme Court. The Colorado Supreme Court has not issued a ruling as of this post.

Also in 2015, a bipartisan trio of U.S. Senators made a proposal to move marijuana from Schedule 1 to Schedule 2 under the federal Controlled Substance Act, among other changes. A Schedule 2 substance can be prescribed after it meets certain standards, but a Schedule 1 substance generally cannot be prescribed legally at all. Testing whether marijuana actually has medical benefits makes sense. If it works, let doctors prescribe it as with any other drug.

Will we see marijuana sitting on pharmacy shelves along with narcotics, antibiotics, and other drugs? Will marijuana join alcohol and tobacco (Marl-bud? Camel Green?) on store shelves, or will the growing legalization movement be snuffed out? Grab some chips and brownies; it will be an interesting show, dude.

This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation. Laws change and your situation may be different. You should consult with a licensed attorney for legal advice specific to your circumstances.