Alaska marijuana regulators abruptly reversed themselves last week, repealing their own policy meant to limit the spread of coronavirus because they feared federal law preempted the state action.
The state Marijuana Control Board said on Thursday that emergency regulations passed last month, which briefly allowed cannabis products to be transported unaccompanied to Alaska’s remote regions by boat or airplane, conflict with federal law “and are therefore invalid.”
“While the intent of this measure was to limit the need for individuals to enter into small communities off of established road systems and potentially prevent the spread of Covid19, the emergency regulations conflict with and are preempted by federal law applicable to commercial air and marine carriers and are therefore invalid,” the board wrote in a memo last week. “A repeal is necessary for the immediate preservation of public peace, safety, and the general welfare.”
Regulators had first adopted the transportation policy at an emergency meeting on April 17. Many of the state’s cannabis businesses had recently been deemed essential, the board noted at the time, and yet state and federal authorities were warning “that limiting the travel of individuals, including those that do not even know they carry the virus, is paramount to containing the spread of the virus.” Even the state’s essential businesses are required to restrict travel between communities.
To protect public health, the cannabis board reasoned that it could “halt the need for travel by employees and agents of those licensees altogether if marijuana or marijuana products can be transported by marine or air transportation carriers.” Products would need to be tracked on their journey, as well as dropped off and picked up by licensed personnel, but otherwise they could effectively be shipped within Alaska by air or sea. The new rules took effect immediately.
The measure was set to expire August 14 unless the board took further action. But on May 7, at yet another emergency meeting, regulators undid the policy early on the grounds it ran afoul of federal law
Whether federal law indeed prohibited such a program, however, is not entirely clear. Marijuana remains federally illegal, of course, but how states are allowed to regulate state-legal cannabis programs remains a murky area of the law. In California, for instance, Los Angeles International Airport has allowed passengers to carry state-legal marijuana on planes since 2018. At the time, the federal Transportation Security Administration said that “whether or not the passenger is allowed to travel with marijuana is up to local law enforcement’s discretion.”
As the Alaska regulators indicated, there is a Federal Aviation Administration (FAA) regulation on the books that outlaws the “carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances” on airplanes and marine craft—but that’s not the whole story. In the following paragraph, a regulation added in 1972 exempts “substances authorized by or under any Federal or State statute or by any Federal or State agency.”
Could that mean Alaska’s emergency transportation measure was federally legal all along?
Glen Klinkhart, interim director of the Alaska Alcohol and Marijuana Control Board, told Marijuana Moment via email that the board’s decision to repeal the emergency transportation measure was “based upon interpretation from the State of Alaska Attorney General’s office.” He referred questions to the state Department of Law.
Assistant Attorney General Maria Bahr told Marijuana Moment that the apparent exemption under the 1972 regulation “is not specific to the issue before the board, which was the unaccompanied transportation of marijuana.” Asked what specific federal law preempted and invalidated the emergency transportation rule, Bahr replied:
“As your cite from the record suggests, the Board often deals with conflicts between federal and state law. In this instance, the Department of Law is concerned about the unaccompanied travel of marijuana as cargo and will not permit that absent additional guidance from the FAA.
“If you seek additional information the Department of Law suggests you try a Public Records Act request to AMCO.”
While it’s possible that state lawyers were worried about some other federal law, it also wouldn’t be the first time that an overbroad fear of federal conflicts has stymied sensible state-level regulation. Local governments hesitant to embrace voter-led legalization have routinely raised fears of federal prosecution as cover for taking a hands-off approach to issues such as licensing or collecting taxes.
Even without Alaska’s emergency transportation policy, Klinkhart, the marijuana board’s interim director, said regulators are focused on safety amid the COVID-19 pandemic. The board “continues to work to regulate and enforce the Alaska Statutes and Regulations surrounding the Alaska Marijuana Industry while protecting the public during this difficult time,” he said.
Photo by Aphiwat chuangchoem