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.
White House Drug Officials Say Legal Marijuana Is Up To States
Two top federal drug officials, including the White House drug czar, recently said that marijuana legalization should be left up to states.
The comments stand out coming from the Office of National Drug Control Policy (ONDCP), which has historically played a central role in defending blanket federal prohibition.
Jim Carroll, the Trump-appointed drug czar who directs the administration’s drug policies, told Fox 59 reporter Kayla Sullivan that he considers legalization a states’ right issue. He added that he’d like to see targeted education campaigns concerning cannabis use during pregnancy and underage usage as well as research into impaired driving.
Got the answer: He believes it should be left up to the state. However, he does want to educate people on the effect marijuana has on young brain development, pregnant women and wants to come up with better guidance & testing for marijuana while driving. https://t.co/eifryNJB1j
— Kayla Sullivan (@KaylaReporting) August 14, 2019
It’s a particularly notable position given that federal law stipulates that the drug czar is required to “take such actions as necessary to oppose any attempt to legalize the use of a substance” listed as Schedule I under the Controlled Substances Act, including marijuana.
Even if Carroll’s remarks arguably don’t directly violate that statute, they are significant in that he doesn’t seem to have taken the opportunity to proactively oppose state legalization efforts when asked by a reporter.
Anne Hazlett, senior advisor at ONDCP, also weighed in on cannabis legalization on Wednesday, telling CentralIllinoisProud.com that marijuana legalization is “a state decision.”
“Marijuana is an ongoing challenge that is being addressed in many of our states,” she said. “This is a state decision, and we would like to see additional research done so that these decisions being made at a state level are being made in a manor that is fully informed.”
Though the comments from Carroll and Hazlett seem to reflect an evolving understanding of the federal government’s role in imposing prohibition on the states, the ONDCP director has previously made clear he’s not enthusiastic about the burgeoning legal market.
During a House Committee on Oversight and Reform hearing in May, Carroll raised concerns about THC potency in marijuana products, saying “the marijuana we have today is nothing like what it was when I was a kid, when I was in high school.”
“Back then the THC, the ingredient in marijuana that makes you high, was in the teens in terms of the percentage,” he said. “Now what we’re seeing is twice that, three times that, in the plant.”
He also said that more research is needed and that the Drug Enforcement Administration as well as the Department of Health and Human Services are “working hard to make sure that we understand the impact of legalization of marijuana on the body.”
Photo courtesy of Philip Steffan.
New Industry-Backed Marijuana Legalization Measure Filed In Florida
Another measure to legalize marijuana has been filed in Florida—and this one is being spearheaded by a major industry stakeholder, the multi-state dispensary chain MedMen.
Make It Legal Florida—a political committee that was registered earlier this month and is chaired by Nick Hansen, MedMen’s director of government affairs in the Southeastern U.S —filed the 2020 ballot initiative on August 6.
The campaign shared language of the measure, which isn’t yet available on the Florida Department of State elections division site, with Marijuana Moment.
“Make it Legal Florida is proud to present a ballot initiative that will legalize the safe, adult use of marijuana,” Hansen said via email. “Public opinion is on our side, and the time to act is now. Florida voters on every side of the aisle overwhelmingly support this initiative and at Make it Legal Florida, we are committed to ensuring Floridians have a chance to have their voices heard.”
The proposed constitutional amendment would legalize the possession, use, transportation and retail sale of up to 2.5 ounces of cannabis for adults 21 and older. Medical marijuana dispensaries in the state would be permitted to sell marijuana to adults. The initiative doesn’t mention a licensing system to establish separate recreational shops, though the legislature will likely enact more detailed regulations consistent with the constitutional amendment’s text should it pass.
It also requires cannabis products to be “clearly labeled and in childproof packaging” and prohibits advertisements that are targeted at those under 21.
There’s also no mention of a home cultivation option, which is something that many advocates regard as a necessary civil liberties component but that some industry players have resisted or actively opposed.
A medical cannabis industry association based in New York faced backlash from advocates earlier this year after it was reported that it sent a document to Gov. Andrew Cuomo (D) recommending that the state prevent consumers from growing their own marijuana at home. MedMen was among the companies listed as members of the association at the time, though a representative later told Marijuana Moment that the business supports giving adults the right to grow their own cannabis.
The new Florida language is “currently being reviewed by the Florida Division of Elections to ensure the petition is in the proper form and we are awaiting their approval, per the usual process,” a spokesperson told Marijuana Moment.
It’s not clear to what extent MedMen will be funding or running the campaign, but the cannabis company appears to be taking a more active role in legalization efforts this election cycle.
In Arizona, an adult-use legalization measure filed at the beginning of the month is also reportedly being backed by MedMen, as well as other existing medical cannabis companies in the state.
Make it Legal Florida will be competing against at least one other campaign that’s working to legalize cannabis in Florida. Sensible Florida, another advocacy group, announced last month that it had collected enough signatures to prompt a state Supreme Court review of the ballot language. It’s collected about 80,000 signatures so far.
To qualify for the ballot, the campaigns will have to gather a total of 766,200 valid signatures. If an effort clears that hurdle, passing a constitutional amendment requires 60 percent support from voters.
“Floridians are ready to legalize marijuana,” Ben Pollara, a political consultant who worked on 2014 and 2016 medical cannabis measures in the state, the latter of which was enacted, told Marijuana Moment. “If this measure makes it on the ballot in 2020, it is almost certain to pass.”
Personal injury attorney John Morgan, who bankrolled the state’s previous medical cannabis initiatives but only recently expressed interest in contributing to this recreational push, told The Miami Herald that Sensible Florida’s challenge will be raising millions of dollars to push their measure forward, whereas Hansen’s operation is well supported by the industry.
“Last time I did, I was the lone trombone player marching down the street,” he said of his role in medical marijuana legalization. “This will be the University of Miami marching band with trumpets and tubas and snare drums. I’ll just be one trombone player, marching with them.”
Read the full text of Make It Legal Florida’s marijuana proposal below:
Photo courtesy of WeedPornDaily.
Defense Department Official Stresses CBD Ban For Military Members
A Department of Defense (DOD) official is reiterating that military service members are barred from using CBD products despite the legalization of hemp and its derivatives under the 2018 Farm Bill.
Patricia Deuster, director of the Human Performance Laboratory at the federal government-run Uniformed Services University of the Health Sciences, said in a call with reporters this week that the non-intoxicating compound is “completely forbidden for use by any service member in any of the services at this point of time.”
While CBD products are widely available—in grocery stores, gas stations and online—the lack of regulations for these items from the Food and Drug Administration (FDA) creates uncertainty about levels of THC in the preparations. And military members who test positive for THC can be punished with an other-than-honorable discharge and the potential loss of other benefits.
“It’s a real conundrum, and it’s going to be a major issue for the military because it is available [nearly everywhere],” Deuster said, according to Military.com, which first reported her remarks. “You go into any store, and you can find gummy bears with a supplement fact panel on it.”
Though the Tuesday press call simply provided clarity on existing military CBD policy, it represents the latest example of DOD interest in preventing the use of cannabis among service members.
The Navy released a notice earlier this month stipulating that “all hemp and CBD products are strictly prohibited for use by Sailors” no matter the legal status. And the Coast Guard said its members aren’t even allowed to visit marijuana shops or use online or delivery cannabis services, according to an order released last month.
That order didn’t specify policy around hemp-derived CBD, but a Coast Guard official told Mililtary.com that if members “have a desire to use a product that may or may not fall into the definition of what’s prohibited, they should seek guidance or use caution.”
Last year, the Air Force wrote in a post that “consumption [of marijuana] is not permitted in any fashion, period.” It emphasized the need to take caution as more states legalize, with one risk factor being your “friend’s grandma’s miracle sticky buns” that “might look mighty tasty and get rave reviews at the big shindig,” but could contain THC.
In a memo released in April, the Air Force said that “Airmen are advised against using CBD products” and could face disciplinary action if they use CBD that isn’t the FDA-approved drug Epidiolex.
The Army issued a similar notice in November 2016 that stated service members may not use marijuana, hemp or hemp oil.
Though not a military branch, NASA also sent a warning to its workforce this month that the unregulated nature of CBD products means employees could inadvertently consume THC that could get them fired.
“The problem is there is no regulatory framework to ensure that the CBD products being sold meet the Farm Act,” Deuster said on the call this week. “[CBD] is everywhere. We are waiting for the FDA to do something,”
She added that service members shouldn’t “believe what [the companies] are telling you” about the benefits of CBD.
Photo by Sam Doucette on Unsplash.