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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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Tom Angell is the editor of Marijuana Moment. A 15-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he serves as chairman of the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

Politics

More State Political Parties Endorse Marijuana Legalization

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Delegates at Democratic party conventions in two separate states voted to add marijuana legalization planks to their official platforms this weekend.

In Texas, Democrats embraced a policy to “legalize possession and use of marijuana and its derivatives and to regulate its use, production and sale as is successfully done in Colorado, Washington and other States.” Delegates also called on the immediate legalization of medical marijuana, the removal of cannabis from the list of federally banned substances and the release of individuals convicted of marijuana possession, as well as the expungement of records for individuals convicted of marijuana-related misdemeanors.

A separate plank adopted by the party embraces the “legalization of hemp for agricultural purposes.”

The language of the planks is similar to the Texas Democratic Party’s current platform, which also called for marijuana decriminalization and the regulation of the “use, cultivation, production, and sale [of cannabis] as is done with tobacco and alcohol.”

The move comes about a week after the state’s Republican party delegates approved platform planks to decriminalize cannabis, expand the state’s medical marijuana program, reschedule marijuana under federal law and push forward with hemp reform.

In New Hampshire, Democratic delegates also voted in favor of adding a platform plank to legalize cannabis. “We believe that marijuana should be legalized, taxed, and regulated,” the Granite State Dems’ new plank reads. Delegates at the convention also approved a resolution supporting the removal of marijuana from the Controlled Substances Act.

The passage of the pro-legalization plank in New Hampshire reflects a significant policy evolution—but the path to its approval wasn’t necessarily smooth. There was debate among party officials about the initial language of the plank, which said the state should “treat cannabis in a manner similar to alcohol.” The plank was changed to satisfy some members who took issue with the reference to alcohol, The Concord Monitor reported. Even so, not all members were on board with the plank, with House Minority Leader Steve Shurtleff arguing that the party should wait until a legislative commission studying the impact of legalization in the state submits its report in November.

That the party’s delegates went ahead and adopted the legal marijuana endorsement is “an encouraging development that bodes very well for the future of cannabis policy in New Hampshire,” Matt Simon, New England political director for the Marijuana Policy Project, told Marijuana Moment. “After several years of modest, incremental reforms being obstructed by previous Democratic Governors John Lynch and Maggie Hassan, it’s great to see that the party, and both of its gubernatorial candidates, are now embracing legalization and regulation.”

New Hampshire’s Republican party has not taken up legalization as a platform plank.

The Texas and New Hampshire Dems joined the ranks of several others that approved similar platform positions.

In May, the Democratic Party of New York endorsed a resolution supporting “the legalization of marijuana which should be regulated and taxed in a manner similar to alcohol.” Connecticut’s Democratic party also adopted a platform plank this year stating that “[t]he time for legalization of Marijuana has come.”

“Doing so will raise revenue, which can be used to benefit those suffering from the disease of addiction to prescription pain medications and other opioids.”

And from California to Wisconsin, Democratic party delegates across the country officially backed marijuana legalization in 2016—and numerous others threw their support behind more modest cannabis reform policies such as decriminalization. Iowa’s Democratic party went even further, calling for the legalization of all drugs.

That same year, the Democratic National Convention (DNC) approved the first-ever major party platform to include a plank embracing a “reasoned pathway for future legalization” and the rescheduling of cannabis under federal law.

“We believe that the states should be laboratories of democracy on the issue of marijuana, and those states that want to decriminalize it or provide access to medical marijuana should be able to do so. We support policies that will allow more research on marijuana, as well as reforming our laws to allow legal marijuana businesses to exist without uncertainty. And we recognize our current marijuana laws have had an unacceptable disparate impact in terms of arrest rates for African Americans that far outstrip arrest rates for whites, despite similar usage rates.”

The growing support for legalization among Democratic state parties appears to reflect a similar trend in public opinion toward cannabis reform nationally. A recent poll found that a record 68 percent of Americans believe marijuana should be legal. That includes a majority of Republicans. While federal lawmakers have generally been slower to adopt pro-legalization stances, a number of bipartisan bills have also been introduced in recent months that aim to reform the country’s cannabis laws.

Support for Marijuana Legalization At Record High, New Survey Shows

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James Comey Weighs In On Marijuana Legalization

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Former FBI Director James Comey, at the center of a wide-ranging investigation into whether President Trump obstructed justice, has been asked many times what he thinks about the rule of law and related matters during the course of a publicity tour for his new book.

On Friday, he was asked to share his thoughts about marijuana legalization.

“The experiment is underway in the United States and I think the jury is still out on it,” Comey said.

“What I like about what’s going on in the U.S. is we call the states the laboratories of democracy, and allow the people in the states to experiment — experiment is probably the wrong word in this context — but to make choices, to try and figure out the best way not to overcriminalize behavior that people want to engage in, but also not to reward behavior that might hurt especially young people.”

While the former top federal cop indicated he supports letting states implement cannabis policies that are in conflict with U.S. laws, he’s not yet ready to personally endorse legalization.

“I’d like to see how it goes and what the natural break on it is. Does it really lead down a slippery slope to other drugs?” he said in the interview with LBC in the UK. “And there’s emerging science about the the dangers to the brain of smoked marijuana. Smoked marijuana is not medicine, and so I honestly don’t know.”

“I think it’s worth experimenting with relaxation, talking about it, but monitoring it very closely.”

See Comey’s marijuana comments, roughly 18:50 into the clip below:

In 2014, as FBI director, Comey made headlines by suggesting that he wanted to relax the bureau’s employment policies with respect to drug use.

“I have to hire a great work force to compete with those cyber criminals and some of those kids want to smoke weed on the way to the interview,” he said at the time.

He walked the comments back days later in response to questioning from then-Sen. Jeff Sessions, who now serves as U.S. attorney general.

“I was trying to be both serious and funny,” Comey said in response to the “disappointed” senator.

Photo courtesy of FBI.

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Marijuana Legalization Bill Moves Forward In U.S. Territory

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About a week after a U.S. territory hit a snag on the road to full marijuana legalization, a committee made several revisions to the bill that are expected to clear the path to passage.

Lawmakers in the Commonwealth of the Northern Mariana Islands (CNMI) seemed set to put a legalization bill to a full House of Representatives vote on June 12, but the bill was unexpectedly sent back to the chamber’s Committee on Judiciary and Governmental Operations (JGO).

That same committee previously unanimously approved the legislation in May. It also passed in the territory’s full Senate that month.

Upon referral, the committee made a number of revisions, including the removal of licensing fees for statutory reasons and the addition of a policy that bans regulatory commissioners from participating in the program if they’ve been convicted of a crime within the last 15 years, legalization advocate Gerry Palacios  of Sensible CNMI told Marijuana Moment. Because two sections regarding cannabis use and sales for individuals under 21 contradicted each other, one was struck from the legislation.

CNMI Marijuana Legalization Bill by MarijuanaMoment on Scribd

One question still needs to be resolved by lawmakers: the JGO recommended a recess until July 2 in order to clear up whether fines levied against individuals who violate the law would be counted as “revenue generators.” If the commission determines that these fines are not a part of the revenue stream, the fines provision will remain in the bill. (Revenue generation legislation is supposed to originate in the House — and not the Senate, where the legalization bill was first filed.)

Another change the committee made to the bill on Thursday would speed up the timeline for implementing legalization. The JGO amended the legislation to require that the CNMI Cannabis Commission would be created within 30 days of the passage of the bill instead of 90 days.

“These changes were made for clarification and constitutional purposes for speedy passage of the bill,” Palacios said. “The goal is to keep the intent and integrity of the bill intact while at the same time addressing issues on interpretation of its language.”

“Once the JGO convenes on July 2 after clarification on [the] ‘fines’ issue, they will move to adopt and push for full House review.”

So that’s where the state of cannabis legalization in the U.S. jurisdiction stands. Advocates tell Marijuana Moment that the Senate is likely to OK the changes recommended by the committee, but it’s unclear when a full House vote will take place at this point. If the bill ultimately passes, CNMI will be the first U.S. territory to fully legalize without a preexisting medical cannabis system in place.

“The Senate will have no problem with these changes as long as the bill’s integrity and intent are kept.”

That said, the territory’s governor, Ralph Torres, expressed concerns earlier this month about the potential impact of legalization on public health and crime.

“In the nine states that have legalized marijuana, have we seen an increase in crime?,” he asked, according to Marianas Variety. “If there is, what is the nature of these crimes? We should look at this and other things. I am concerned about public safety issues.”

Here’s what the bill would accomplish

  • Adults 21 and older would be allowed to possess, grow and consume cannabis.
  • CNMI would establish a regulatory system to produce, process and manage retail sales of marijuana.
  • Tax revenue from marijuana sales would go toward funding the regulatory system and other government services.

U.S. Territories Could Legalize Marijuana Soon

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