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This Obscure 45-Year-Old Federal Law Exempts State-Legal Marijuana

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Most observers of marijuana policy are aware of the annual budget rider that has protected state medical cannabis laws from federal interference since late 2014. But many incorrectly assume that it is the only federal provision that makes an exemption for state-legal marijuana.

Actually, there is another, much more obscure U.S. regulation that carves out a manner of legitimacy and protection for cannabis activity that is legal under state law.

And, it’s 45 years old.

Enacted just two years after the founding of the National Organization for the Reform of Marijuana laws, the 1972 Federal Aviation Administration (FAA) rule banning pilots from operating aircraft with illegal substances on board specifies that it “does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.” [Bolded emphasis added.]

An earlier, 1969 version of the regulation did not contain the clause protecting state-legal activity.

It is unclear what occurred during the three-year window between the versions that prompted FAA to make exemptions for state marijuana laws, but the 1972 revision does contain explanatory text showing that the penalty-setting provision preceding the clause with the state exceptions was also amended. Previously, it, too, only concerned federal laws and violations thereof.

“Since the adoption of Amendment 91-66, information available to the FAA indicates that the illicit carriage of drugs by aircraft may be occurring in various places within the United States and involve violations of State as well as Federal statutes,” the agency wrote in the Federal Register. “Accordingly, in order to cope effectively with the threat to safety in air commerce from such illicit carriage of drugs, it is proposed to amend § 91.12(a) and make the prohibition therein apply to the operation of civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.”

When it comes to the subsequent exemption clause, it is remarkable that the federal government may have contemplated as far back as 1972 not only that states would begin legalizing marijuana but that activity in accordance with those laws should be shielded from a federal penalty on airplane pilots.

It wasn’t until 24 years later, in 1996, when California became the first state to enact a broad medical cannabis policy, and full-scale adult-use legalization didn’t arrive until Colorado and Washington State ended their prohibition laws in 2012. (Beginning in 1978, a number of states enacted mostly symbolic and ineffective medical marijuana laws that didn’t provide patient access, but that was still six years after the FAA rule change.)

While it is possible that FAA didn’t actually mean in 1972 to protect consumers carrying future-legal cannabis in the sky — and may have just meant to make sure law enforcement could legally transport seized contraband — a plain reading of the regulation would seem to have that perhaps unintended effect today.

In any case, it is still on the books. And very few people working on cannabis issues, if any, seem to have ever noticed it.

None of a half-dozen longtime D.C.-based marijuana policy reform advocates that Marijuana Moment reached out to for this story said they were aware of the FAA exemption’s existence.

But the provision could nonetheless have huge implications for the growing number of states that are making marijuana legal for medical or recreational purposes.

Much has been made, for example, of licensed cannabis producers’ difficulties in transporting their wares in states with populated islands.

A 2014 Seattle Times story on legal cannabis access by Washington State residents living on islands mentions the FAA’s ban on using aircraft to transport illegal drugs, but makes no mention of the decades-old exemption for state-legal marijuana products.

A 2015 Martha’s Vineyard Times piece describes difficulties in getting Massachusetts-legal cannabis to the island and raises federal concerns, but it, too, ignores the FAA exemptions for state laws.

While crafting medical cannabis regulations, Hawaiian legislators included their own state-level prohibition on interisland transportation. A lawmaker indicated in a 2016 Associated Press interview that she and colleagues were “trying to figure out how to get around federal laws that prevent marijuana from being transported by sea or air,” according to the news organization’s paraphrase of her remarks.

And earlier this year, a Boston Globe story even linked to the relevant section of FAA regulations to cite the ban, but the reporter apparently didn’t notice the state carve-out in the following clause.

States could potentially be able to solve their local transport issues by citing the little-known exemption. But, depending on the Trump administration’s response, the issue could end up being settled by courts.

And while the provision in question only concerns the ability to operate aircraft and doesn’t directly implicate broader interstate drug trafficking issues under the Controlled Substances Act, the fact that the exception exists could provide some room for arguments about Transportation Security Administration policies on the transport of marijuana on commercial planes, for example, as well as other gray areas at the intersection of conflicting federal and state drug laws.

After this story was published, a reader pointed out that Marijuana Business Daily briefly discussed the FAA regulation’s state-legal exemption in an earlier piece about transportation issues.

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Politics

GOP Congressman: Legal Marijuana Has “Possibility To Create Jobs”

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Legalizing marijuana might be a way to help lift rural areas of Virginia out of poverty, a Republican who represents part of the state in Congress says.

“The lands out in Southwest are conducive to be able to grow that for medicinal purposes, or whatever it is, for other research purposes, and even recreational use for some areas, if Virginia chooses to legalize it in that way,” Congressman Scott Taylor said on Wednesday. “And if Virginia goes that way I think there is the possibility to create jobs down in the Southwest.”

Taylor, who was answering a caller’s question during an appearance on C-SPAN’s Washington Journal, added that he supports letting states set their own cannabis laws without federal interference.

“I think we should decriminalize it and leave it up to the states,” he said. “I do believe it’s a state decision, not a federal decision.”

Taylor, a freshman member of Congress, is a cosponsor of a pending House bill to remove marijuana from the Controlled Substances Act.

“When I was in the state House we voted to legalize industrial hemp, which is also another product that would grow well in Southwest just as tobacco did,” Taylor added. “So I think there’s product there.”

Advocates believe that Virginia has a good chance of decriminalizing cannabis in 2018. Incoming Gov. Ralph Northam, A Democrat, spoke often about cannabis on the campaign trail, consistently describing criminalization’s impact in stark racial justice terms.

New Virginia Governor Pledges Marijuana Decriminalization

Republican Senate Majority Leader Tommy Norment has announced he will file a decriminalization bill when the new legislative session begins in January.

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Vermont Will Legalize Marijuana Within Weeks, Officials Indicate

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Vermont appears poised to become the next state to legalize marijuana. And, according to top elected officials, it is likely to do so within a matter of weeks.

Last week, House Speaker Mitzi Johnson, a Democrat, said she expects “it likely will pass in early January.” Days earlier, Gov. Phil Scott, a Republican, said he is “comfortable” signing a cannabis legalization bill into law in early 2018. And on Thursday, Senate President Pro Tempore Tim Ashe, a member of the Progressive Party, said he and his colleagues “look forward to working with the governor to make sure that that bill gets to the finish line.”

Please visit Forbes to read the rest of this piece.

(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)

Photo courtesy of M a n u e l.

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Here’s What Jeff Sessions Discussed In Secret With Anti-Marijuana Activists

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Last week, U.S. Attorney General Jeff Sessions held a behind-closed-doors meeting about marijuana with anti-legalization activists.

Now, thanks to the fact that Sessions inadvertently showed an agenda for the meeting to a TV camera that was in the room to capture introductions — along with some high-tech sleuthing — we know what the prohibitionists discussed in secret after reporters were kicked out.

A Twitter user with the handle @MentalMocean was able to enhance a screen capture of the document that Marijuana Moment posted.

Enhanced photo.

The document appears to read:

Agenda

Bertha Madras: Marijuana is not a substitute for opiates as a pain medication.

Dr. Hoover Adger: The harm from today’s marijuana.

Dr. Bob DuPont: The effect of marijuana on drugged driving.

David Evans: The role that the Food and Drug Administration can and should [obscured]

[obscured] The organizations you can speak for and what you and they are [obscured] people from recreational marijuana use.

[obscured] law enforcement thinks of the commercialization of [obscured] law enforcement would support an enforcement initiative.

[obscured] course of marijuana commercialization in the states if the [obscured] not intervene.

The enhanced photo makes clear that the anti-legalization activists made a concerted pitch during meeting to convince Sessions to launch a federal crackdown on states that have ended cannabis prohibition.

In attendance, according to video of the opening introductions captured by a pool photographer and posted by C-SPAN, were:

  • Edwin Meese III, U.S. attorney general under the Reagan administration
  • Kevin Sabet, president and CEO of Smart Approaches to Marijuana
  • Bertha Madras, a former Office of National Drug Control Policy staffer and a member of President Trump’s Commission on Combating Drug Addiction and the Opioid Crisis
  • Robert DuPont, former director of the National Institute on Drug Abuse
  • David Evans, executive director of the Drug Free Schools Coalition
  • Dr. Hoover Adger, Johns Hopkins Hospital

“I think it’s a big issue for America, for the country, and I’m of the general view that this is not a healthy substance,” Sessions said at the beginning of the gathering. “I think that’s pretty clear. And then have the policy response that we and the federal government needs to be prepared to take and do so appropriately and with good sense.”

“I appreciate the opportunity to hear your analysis on marijuana and some of the related issues,” Sessions told the group. “I do believe, and I’m afraid, that the public is not properly educated on some of the issues related to marijuana. And that would be a matter that we could, all of us together, maybe be helpful in working on and that would allow better policy to actually be enacted.”

The group’s roundtable discussion itself, which took place after initial introductions, was closed to the press.

The gathering comes as the Justice Department’s overall position on marijuana policy remains uncertain. Sessions has in recent weeks sent mixed signals about his plans for federal marijuana enforcement under the Trump administration.

Last month, he testified before Congress that an Obama-era Justice Department memo that generally allows states to implement their own marijuana laws without interference remains in effect. But he separately told reporters at a briefing that his department is actively conducting talks about potential changes to the policy.

Photo courtesy of Gage Skidmore.

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