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Federal Law (Marijuana Compliance)

The legalization of marijuana in individual states has caused a lot of confusion and misinformation when it comes to how federal law plays into state frameworks. For consumers that are legally buying cannabis in a state where it is legal, there isn’t too much concern unless they are crossing state lines with the drug. People who operate a marijuana business, however, require more certainty since their livelihoods depend on it.

Until the federal government legalizes marijuana, there will continue to be discrepancies and gaps in the law. Until that time, if you run a cannabis business, you need to make sure you have an experienced attorney by your side that can ensure you are complying with state and federal regulations. 

Attorney for Federal Law Marijuana Compliance in Colorado Springs

You’ve invested your life into your business, and the last thing you want to happen is for it to be shut down by the government.  Complying with state and federal laws and regulations is crucial for operating your business. Dealing with the laws and rules of all the various governmental entities including state and federal revenue services can be a lot to handle on your own.

You need a veteran business law attorney who has experience working with marijuana companies. You need an attorney who has helped build and protect marijuana businesses ever since they became legal in the state of Colorado. You need Law Offices of Clifton Black, PC. Reach out to us today at (719) 328-1616 and tell us about your business and we’ll tell you how we can help.

Federal Law Marijuana Compliance Resource Center

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State and Federal Law Conflict – Pre-Emption

While a majority of states have legalized marijuana in some capacity, the drug remains illegal under the federal Controlled Substances Act (CSA). Marijuana is classified as a Schedule I drug, which means the federal government considers it to be a dangerous drug. Schedule I drugs are declared under the CSA to have no acceptable medical use and to have a high potential for abuse.

The Schedule I designation of marijuana makes it extremely difficult for research institutions such as universities to obtain the drug to even study it. There is, in fact, no federal framework in place for anyone to obtain marijuana for a legal purpose other than research.

What happens when state law and federal law conflict? So, what does this mean for marijuana businesses operating in states where it is legal?

When there is an inconsistency between state law and federal law, the general rule of thumb is that federal law prevails. In regard to marijuana, the Supreme Court has already ruled that even if a person cultivates marijuana in compliance with state law, they can still be prosecuted under federal law. This power to overcome state law and impose federal law is known as pre-emption.

The federal government’s pre-emption power is derived from Congress’ authority under the commerce clause of the constitution. The commerce clause gives Congress exclusive authority over interstate commerce. The Supreme Court, however, has also ruled that intrastate commerce can also be regulated by Congress. In a famous case known as Wickard v. Filburn, the Supreme Court ruled that Congress can regulate intrastate activity if “it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

This ruling has been applied to marijuana, and it has been reasoned by the court that production of marijuana, even if meant just for personal consumption, represents a substantial effect on the national marijuana market and is, therefore, a commodity that can be regulated by the federal government.

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The Cole Memo

While the sale of marijuana is still illegal at the federal level, that does not mean that you will necessarily be prosecuted by the federal government. During the Obama Administration, United States Deputy Attorney General James M. Cole issued a memorandum to all federal prosecutors detailing why the Justice Department would not enforce federal marijuana laws in states where the drug had been legalized.

The “Cole memo” as it became known is not a regulation and it is not a law. It is simply guidance to United States Attorneys and to marijuana businesses on when the federal government might step in to impose its laws relating to cannabis.

The memo is only four pages, but it provides some valuable insight on marijuana activities that may draw the ire of the Department of Justice. There are some basic tenets that a marijuana business owner should comply with to avoid prosecution from the federal government. A marijuana business must:

  1. Comply with all local and state laws;
  2. Not distribute to minors;
  3. Prevent revenue from going to criminal enterprises;
  4. Not traffic marijuana to another state;
  5. Not use a marijuana operation as a cover for an illegal drug operation;
  6. Prevent violence and the use of firearms in cultivating and distributing marijuana;
  7. Prevent drugged driving;
  8. Not grow marijuana on public lands; and
  9. Prevent marijuana possession or use on federal property.

While the Cole memo was active, it was generally understood as long as marijuana businesses complied with the provisions above, they would likely not be prosecuted at the federal level.

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Post Cole Memo

While the Cole memo was not a codified law, it was valuable guidance to the citizens of states where the drug was legal and for federal prosecutors who were deciding whether they should go after a marijuana business. In January of 2018, however, then acting Attorney General Jeff Sessions rescinded the Cole memo. What this means is the guidance provided by the memo is no longer valid. Instead, federal prosecutors have the discretion to decide whether they want to prosecute a marijuana crime or not.

While this is troubling for marijuana business owners, there has been no indication that federal prosecutors have decided to divert more resources to go after those who are operating cannabis businesses within the laws of their own state. In fact, there has been no wide-scale shift in enforcement actions since the Cole memo was rescinded.

Jeff Sessions has since resigned as Attorney General, and President Trump has expressed a commitment to allowing states to regulate cannabis within their own jurisdictions. It is still an uncertain time for marijuana business owners but retaining the services of an experienced marijuana business law attorney is crucial in protecting one’s livelihood.

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Federal Law Resources

Colorado NORML – The National Organization for the Reform of Marijuana Laws (NORML) was successful in helping the state of Colorado legalize cannabis. NORML is not stopping there, though, and is still fighting to end marijuana prohibition across the country and at the federal level. To find out how you can help, follow the link to the Colorado chapter of NORML.

Cole Memo | U.S. Dept. Of Justice – The Cole memo has to date, provided the clearest guidance on how marijuana businesses in states where cannabis is legal should operate. Even though the memo has since been rescinded, it still provides valuable insight into what the best practices are for avoiding prosecution from the federal government. To read the entirety of the four-page memo, follow the link.

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Attorney for Marijuana Federal Law in Colorado Springs

While marijuana may be legal in Colorado, it is still prohibited under federal law. Keeping your marijuana business compliant with state laws and regulations is crucial to maintaining your business. You also need to make sure you have an attorney that knows federal and state laws back to front.

The attorneys of Law Offices of Clifton Black, PC are experienced business lawyers who have been working with marijuana companies since the drug became legal in Colorado. Protect yourself and your business by calling us at (719) 328-1616. We are veterans of the industry and we can walk you through every aspect of operating a marijuana business.

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Law Offices of Clifton Black, P.C.