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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.

Politics

New Zealand Voters Get Chance To Legalize Marijuana By 2020

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New Zealand could be the first country in the world to legalize marijuana by a nationwide voter referendum.

That’s the result of a new minority coalition government agreement announced on Thursday.

As a condition of helping to install Labour Party head Jacinda Ardern as the country’s next prime minster and pass some of her legislation, the Green Party extracted a promise from the incoming government to let New Zealand voters decide whether to legalize cannabis at the ballot box by 2020.

A Global First

Uruguay has already legalized marijuana, and Canada’s government is working to end prohibition by next summer. In both of those nations, however, the cannabis changes are a result of acts of elected officials.

In the U.S., voters in a growing number of states have enacted legalization ballot measures, but the country has no national voter initiative or referendum process.

That means New Zealand voters could be the first in the world to legalize cannabis throughout an entire country at the ballot box. (In 2008, voters in Switzerland strongly rejected a marijuana legalization referendum.)

That is, if the new government stays in power and upholds the “confidence and supply” deal it made with the Greens.

New Zealand’s Incoming Prime Minister On Marijuana

Labour’s 37-year-old Ardern personally supports medical cannabis and says that she doesn’t “think people should be locked in prison” for marijuana but that achieving that outcome doesn’t necessarily “require decriminalisation.”

Now, as part of her new coalition government’s deal, New Zealanders will have a chance to push even further by voting in favor of legalizing cannabis.

In a press conference after the new governing deal was announced, Ardern said she would be “seeking advice” as to the exact timing of the marijuana referendum.

It is also not clear whether it will be strictly binding or simply an advisory measure, though the new leader indicated she’s leaning toward giving voters the power to directly legalize cannabis themselves.

“That might be a conversation we have as an executive,” she said. “I think if you go to the New Zealand public on an issue like that and it’s confidence vote, then we really should place some weight on the public of New Zealand’s view.”

As to her own views on cannabis, Ardern said that the country’s current policy, which is “a justice-based approach to cannabis in this country, isn’t working. We can do better.”

But the incoming prime minister also has “concerns about young people accessing a product which can clearly do harm and damage to them.”

Broader Drug Reforms In Play

In addition to the marijuana referendum pledge, the Greens were able to get Labour to agree to broader, if vaguely articulated, drug policy reforms. According to an email sent to party supporters, the deal would:

“Increase funding for alcohol and drug addiction services and ensure drug use is treated as a health issue, and have a referendum on legalising the personal use of cannabis at, or by, the 2020 general election.”

The Greens also extracted concessions on climate policy and education, and will also have ministerial posts as part of the agreement with Labour.

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Sessions: Expanding Marijuana Cultivation For Research Is “Healthy”

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U.S. Attorney General Jeff Sessions is no fan of legalizing marijuana, but he indicated on Wednesday that he supports letting more people grow it for research purposes.

“I think it would be healthy to have some more competition in the supply,” he said, alluding to the fact that all cannabis used for research in the U.S. is grown at a single farm at the University of Mississippi.

Sessions, testifying at an oversight hearing before the Senate Judiciary Committee, was responding to a question from Sen. Orrin Hatch (R-UT) about press reports that the Department of Justice is stymying efforts by the Drug Enforcement Administration (DEA) to grant additional licenses to cultivate cannabis for medical research.

Last year the DEA enacted a new policy intended to license more research cultivation facilities, a move that came on the same day the agency rejected petitions to reschedule marijuana.

Researchers have long argued that it is difficult to access cannabis from the Mississippi farm, which has maintained a monopoly on the legal supply of marijuana since 1968, and that the product is often of low quality.

The DEA has reportedly received at least 25 applications to participate in the new licensing program but has not acted on any of them. According to the Washington Post, that is because top Justice Department officials have stepped in to prevent the agency from acting.

Hatch, who recently introduced legislation to remove roadblocks to studies on marijuana’s medical benefits, told Sessions that he is concerned about the reports that the Justice Department might be impeding expanding research.

Sessions responded that while he agrees it would be “healthy” to add new cultivation facilities, he is concerned about the cost of needed DEA oversight of any new grow sites.

Photo courtesy of Gage Skidmore.

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Politics

Pro-Legalization Congressman To Target Anti-Cannabis Lawmakers

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One of Congress’s leading champions for marijuana law reform is going beyond just trying to pass legislation to push back against federal prohibition and is now actively working to defeat fellow lawmakers who are standing in the way of those bills.

“I’ve been working to try and give you a better Congress,” Rep. Earl Blumenauer (D-OR) said at a cannabis industry event on Tuesday night. “One of the other things we are doing is not just helping friends, but to help people who are against us find something else to do with their time.”

His first target is Congressman Pete Sessions (R-TX). As chairman of the powerful House Rules Committee, Sessions, who is not related to U.S. Attorney General Jeff Sessions, has played a key role in preventing marijuana legislation from advancing.

In that capacity, Sessions has blocked a number of cannabis measures from even being considered on the House floor, including ones to protect state laws from federal interference, facilitate marijuana businesses’ access to banking services and allow Washington, D.C. to set its own legalization policies.

Perhaps Sessions’s most egregious move, in the eyes of advocates, was when he disallowed a vote on a measure to let military veterans get medical cannabis recommendations through the U.S. Department of Veterans Affairs.

“We’re going to be putting up some billboards in Pete Sessions’s district. It’s going to feature a veteran and ask the question why Pete Sessions doesn’t want him to have access to his medicine,” Blumenauer said. “We’re going to make the point that there are consequences. This is not a free vote. People are going to take a position one way or another. And if they are going to be part of an effort to deny people access to medicine that can be transformational…this is going to be part of the political landscape this year.”

Video captured by activist and journalist Russ Belville.

Blumenauer will pay for the billboards using funds from a new political action committee, called the Cannabis Fund, that he recently founded. In addition to going after marijuana reform opponents, the congressman said that the PAC will also proactively work to elect candidates who support cannabis issues on the federal, state and local levels.

“I don’t care where they are, who they are, what the district is,” he said. “There is part of the agenda that you care about that they ought to be able to support.”

Blumenauer was speaking at a National Cannabis Industry Association event in Portland, Oregon, an area he represents in Congress.

In the speech, he referred to one marijuana law reform opponent who no longer has a job on Capitol Hill. Last year, then-Sen. Mark Kirk (R-IL) spoke out against efforts to increase medical cannabis access for military veterans.

“I don’t think we have too few high veterans out there,” he said at the time.

Blumenauer argued that partially as a result of those “disparaging comments not just about medical marijuana but our veterans who need and depend upon it,” Kirk is now “now ex-Senator Kirk.”

Looking ahead, when it comes to his PAC’s first target of Sessions, Blumenauer said the billboards and other efforts should “make his life interesting.”

Later in the speech to the gathered cannabis industry leaders, Blumenauer said that the marijuana business will be “bigger than the NFL in five to ten years,” and decried how the league is “still is suspending people who self-medicate with medical marijuana to deal with the punishment that they go through” on football fields.

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