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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.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Tom Angell is the editor of Marijuana Moment. A 20-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded 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

GOP Senator Shares Photo Of His Dad Harvesting Hemp Decades Ago

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A U.S. senator appears to be taking a hit at the governor of his home state over a disagreement on hemp legalization, and he’s using a decades-old picture of his own father growing the crop to do it.

Sen. Mike Rounds (R-SD) shared a photo on Facebook last month showing his dad harvesting the crop in South Dakota about 80 years ago. While it might seem benign, some political observers believe the post was a subtle dig at Gov. Kristi Noem (R), who vetoed legislation earlier this year to re-legalize industrial hemp in the state.

The senator referenced the picture during a telephone town hall event, where he was asked about the potential of hemp in the textile industry. Rounds said the plant was used to make ropes for the Navy during World War II.

“It’s of my dad (Grandpa Don, left) as a young boy working in a South Dakota hemp field,” he wrote of the photo. “We believe it was taken sometime in the late 1930s/early 1940s.”

The implication seems to be that the crop has a long history in South Dakota and that generations have relied on it prior for its federal prohibition. But even after hemp and its derivatives were federally legalized under the 2018 Farm Bill, Noem has maintained that it should remain criminalized under state law.

The Argus Leader first connected the Facebook post with Noem’s hemp opposition.

Marijuana Moment reached out to Rounds’s office for comment, but a representative was not immediately available.

In March, the governor rejected legislation that arrived on her desk to legalize industrial hemp, arguing that the reform move would pave the path toward legalization of adult-use marijuana. The Senate didn’t have enough support to override the veto.

Lawmakers have said they plan to introduce similar legislation next year, but Noem pledged in September to veto it again.

As far as Rounds is concerned, South Dakota should be allowed to experiment with industrial hemp. He told the Sioux City Journal last month that “I personally don’t see a problem with at least trying it” and he voted in favor of the Farm Bill last year.

Despite Noem’s opposition to the non-intoxicating form of cannabis, activists in the state are moving ahead with efforts to more broadly legalize marijuana for medical and recreational purposes. Signatures on two reform initiatives were submitted to the secretary of state last month and, once verified, the issues are expected to be decided by voters during next year’s election.

Both measures are being backed by national advocacy groups, and the adult-use legalization proposal is being sponsored by a former federal prosecutor.

Vermont Should Legalize Marijuana Sales, Top Health Department Official Says

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Killer Mike Credits Bernie Sanders For Inspiring Marijuana Legalization Movement

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Rapper Killer Mike says that the national push to reform marijuana laws in recent years can be largely attributed to Sen. Bernie Sanders (I-VT).

Sanders, who became the first major presidential candidate to call for cannabis legalization during his 2016 run, has continued to raise the issue as he campaigns for the 2020 Democratic nomination. In the years since he first proposed the policy change, numerous states have pursued reform and pro-legalization stances are increasingly commonplace, especially among Democratic lawmakers.

“Marijuana decriminalization was something I never thought I’d see in my lifetime,” Killer Mike said in an interview on MSNBC on Sunday. “Yet within four years, I’ve seen a nationwide push for it, in big part to his campaign.”

Watch Killer Mike’s marijuana comments, starting around 1:25 into the video below: 

“How does that affect me as the father of a 17-year-old boy? If my son gets caught with marijuana, it could ruin his life for the rest of his life,” he said. “Now we have an environment where he literally will get scolded as a child and get a chance to be a fruitful adult without a felony on his record. I think that that resonates in our community.”

The rapper, who serves as a surrogate on Sanders’s campaign, also talked about the economic potential of legalization and the importance of social equity policies during a town hall event with the candidate in North Carolina in September.

“We have an opportunity this time to take the people that are exiting jail, have expunged records and creating a pathway as wide as this aisle directly to legal marijuana and creating economic sustainability in the same communities that were robbed of that opportunity,” he said at the time.

It’s not just Sanders who deserves credit for contributing to the cannabis reform movement, Killer Mike said at a panel on free speech in June. Rap artists have also played a key role, featuring the plant in music stretching back decades.

“We know that with national decriminalization of marijuana now, a lot of people are going to get credit for it—a lot of activists, a lot of workers,” he said. “But I can show you a line that leads straight back to Cyprus Hill, that leads straight back to Snoop Dogg, that leads straight back to people like Rick James.”

Some of the most impactful work that rappers have produced are songs inspired by social issues like the drug war, he and several other artists argued in a brief submitted to the Supreme Court earlier this year in defense of a rapper who was convicted for threatening Pittsburgh police officers in a song.

AOC Says She’ll Introduce More Psychedelics Legislation In Congress

Photo courtesy of MSNBC.

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Vermont Should Legalize Marijuana Sales, Top Health Department Official Says

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A top Vermont health official is endorsing the legalization of recreational marijuana sales.

During a radio interview on Monday, Cynthia Seivwright, director of the state Department of Health’s Alcohol and Drug Abuse Programs, said that regulating cannabis commerce in the state would better protect public health than current policy does.

Monday’s discussion on WDEV’s Dave Gram Show included the relationship between marijuana-related health consequences and the state’s failure to regulate cannabis after lawmakers there became the nation’s first to legalize marijuana by an act of legislators in January 2018. Gov. Phil Scott (R) signed the bill, which allows low-level possession and home cultivation but continues to prohibit sales, later that month.

“Without the regulation, we don’t know what’s in it,” Seivwright said when asked whether a regulatory model that is similar to that for alcohol makes sense for cannabis. “We can’t control the potency of it. We can’t control the access, and we definitely don’t want children and adolescents to have access to it.”

“Even regulating how it’s tested,” she said, “should be done by an independent lab. Even the packaging. How do we regulate the packaging so that it isn’t desirable for children, to look like candy if it’s going to be edible? We at the Health Department support a regulated system.”

Listen to Seivwright’s marijuana legalization comments at about 1:07:00 into the audio below: 

The Department of Health’s support—a first for the state agency—was welcomed by Dave Silberman, an attorney and pro bono drug policy reform advocate from Middlebury.

“Vermonters of all political stripes are eager to enact a strong regulatory system that puts consumer safety at the forefront, and generates significant revenues for the Department’s broader addiction prevention and treatment efforts,” he told Marijuana Moment. “Rather than burying their heads in the sand and wishing for a drug-free America, the Department seems to finally be taking a facts-based approach to cannabis, rooted in harm reduction instead of stigma. That is a very good thing.”

Seivwright’s support also comes on the heels of renewed attention to the question of regulating marijuana commerce among Vermont legislators. In January, the state Senate approved a cannabis sales legalization bill. But as the legislative session came to a close in the spring, it became clear that the legislation would not reach the House floor for a vote despite having advanced at the committee level.

Although other Democratic leaders have insisted that a marijuana marketplace legalization bill will advance in 2020, House Speaker Mitzi Johnson (D) said there is no guarantee, VT Digger reports.

In particular, Johnson noted that if the bill is to see a floor consideration in the new year, it will need the 76 votes required for passage in the House—indicating that she doesn’t intend to put any muscle into rounding up the support needed to pass it. Concerns such as roadside safety, youth usage and the marijuana production’s impact on the environment must also be addressed, she said.

The speaker’s stance is in contrast to the Vermont Democratic Party, which adopted support for a legal marijuana marketplace as part of its platform last year.

And last year, when the legal marijuana marketplace bill failed to reach the House floor for a vote, Majority Leader Jill Krowinski (D) reaffirmed her party’s commitment to the legislation’s eventual passage, promising that lawmakers would “finish it early” in 2020.

Over the weekend, Krowinski doubled down on her prediction that the House will vote on the legislation in the upcoming session.

“A version of that will get to the floor,” Krowinski said, according to VT Digger.

Lawmakers File Resolution Demanding Congress Apologize For The Racist War On Drugs

Photo courtesy of Carlos Gracia.

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