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Marijuana high on federal radar

The buzz on New Year’s Day was the legalization of recreational marijuana in California, the nation’s most populous state. However, just four days later the focus shifted to federal drug enforcement of the Controlled Substances Act, which still classifies marijuana under Schedule I along with heroin and LSD.

Attorney General Jeff Sessions issued a memo on January 4, 2018 rescinding all previous guidance documents for United States Attorneys specific to marijuana enforcement that were issued from 2009 through 2014. In the memorandum, Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities.

How does this impact medical marijuana states?

The impact of this change on the 29 states, the District of Columbia, Guam and Puerto Rico that currently have comprehensive medical marijuana programs or the 17 states that allow “use of low THC, high cannabidiol (CBD)” products is as hazy as ever. Since December 2014, the federal omnibus spending bills have included the Rohrabacher-Farr amendment, which prevents the U.S. Department of Justice (DOJ) from using federal funds to prevent certain states “from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

This amendment is temporary and must be approved every fiscal year. In a letter dated May 1, 2017, Sessions asked Congressional leaders to not include this amendment in any future omnibus bill, arguing that the amendment would “inhibit [the Justice Department’s] authority to enforce the Controlled Substances Act.” While the 2017 Consolidated Appropriations Act signed into law on May 5, 2017 included the Rohrabacher-Farr amendment, President Trump added a signing statement that indicated he would “treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”

The amendment was included in the last short-term continuing resolution spending bills that expire January 19, 2018 and Sedgwick is carefully monitoring whether the amendment will again be renewed.

How does this impact recreational marijuana states?

Although DOJ enforcement of federal drug laws in states with laws regarding medical marijuana will depend on continued renewal of this amendment, recreational marijuana laws in eight states may face greater risk.

Despite federal uncertainty, the states are seemingly undeterred. Hours after Attorney General Session’s announcement, the Vermont House of Representatives voted 83 to 61 in favor of a bill that makes it legal for adults to possess and cultivate limited amounts of marijuana. The Vermont Senate approved the bill on January 10, 2018 and Governor Phil Scott has said he will sign it, making the state the first to legalize marijuana via the legislature, rather than through a ballot initiative. Efforts to legalize recreational marijuana in additional states like New Jersey and Michigan are currently underway.

Unless a definitive political solution can found, the conflict between federal and state law may end up going before the U.S. Supreme Court. The last time the high court weighed in on marijuana was 2005. More recently, the high court issued an unsigned opinion in March 2016, refusing to hear Nebraska and Oklahoma’s request to declare Colorado’s legalization of marijuana unconstitutional because it is against federal law and violates the Constitution’s supremacy clause, which states federal law supersedes state laws. Since Justices Alito and Thomas dissented, Justice Gorsuch, President Trump’s latest addition to the U.S. Supreme Court, could eventually cast the deciding vote.

What can employers do?

Because the future of federal marijuana policy and enforcement continues to be so uncertain, it is important to stay up to date on the laws and legal decisions concerning this complex and rapidly changing issue in every state your business operates. We also recommend seeking legal assistance to develop and communicate a sound company policy addressing the use and reimbursement of medical marijuana for on-the-job injuries, as well as employee use of both medical and recreational marijuana.

Sedgwick will continue to work together with clients and partners, carefully monitoring judicial edicts and state law to help navigate this cloudy situation. We will continue to offer updates and insights throughout 2018.

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