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.
O’Rourke And Cruz Clash On Marijuana And Drugs At Senate Debate
Candidates in one of the most contentious U.S. Senate races in the country this year clashed about the issues of marijuana legalization and drug policy reform during a debate on Friday night.
“I want to end the war on drugs and specifically want to end the prohibition on marijuana,” Democratic Congressman Beto O’Rourke said in response to an attack on his drug policy record from Republican Sen. Ted Cruz, whom he is seeking to unseat in November.
During one of the most heated exchanges of the hour-long debate, the GOP incumbent slammed O’Rourke for sponsoring an amendment as an El Paso city councilman in 2009 that called for a debate on legalizing drugs as a possible solution to violence along the Mexican border.
“I think it would be a profound mistake to legalize all narcotics and I think it would hurt the children of this country,” Cruz argued.
He also criticized a bill the Democrat filed in Congress to repeal a law that reduces highway funding for states that don’t automatically suspend drivers licenses for people convicted of drug offenses. “That’s a real mistake and it’s part of pattern,” he said.
“There’s a consistent pattern when it comes to drug use, that in almost every single instance, Congressman O’Rourke supports more of it.”
Calling the issue “personal to me,” Cruz spoke about his older sister, who died of a drug overdose.
“To be clear, I don’t want to legalize heroin and cocaine and fentanyl,” O’Rourke countered.
“What I do want to ensure is that where, in this country, most states have decided that marijuana will legal at some form—for medicinal purposes or recreational purposes or at a minimum be decriminalized—that we don’t have another veteran in this state, prescribed an opioid because the doctor at the VA would rather prescribe medicinal marijuana but is prohibited by law from doing that,” he said.
It’s time to end the war on drugs. That starts by ending the federal prohibition on marijuana.
— Beto O'Rourke (@BetoORourke) September 21, 2018
Enumerating other potential beneficiaries of cannabis reform, the Democrat also referenced an “older woman with fibromyalgia” and “an African-American man, because more likely than not, that’s who will be arrested for possession of marijuana, to rot behind bars, instead of enjoying his freedom and the opportunity to contribute to the greatness of this country.”
Cruz, who called O’Rourke, “one of the leading advocates in the country for legalizing marijuana,” said that he thinks ending cannabis prohibition “is actually a question on which I think reasonable minds can differ.”
“I’ve always had a libertarian bent myself,” he said. “I think it ought to be up to the states. I think Colorado can decide one way. I think Texas can decide another.”
But despite his support for letting states set their own cannabis laws, which he also voiced during his failed candidacy for the 2016 Republican presidential nomination, Cruz hasn’t cosponsored a single piece of legislation during his time in the Senate that would scale back federal marijuana prohibition.
Ted Cruz accidentally advocating against marijuana legalization, an incredibly popular policy in the country and in Texas…
— Texas College Dems (@CollegeDemsTX) September 21, 2018
Earlier in the debate, the two sparred over the killing this month of Botham Jean, an African-American man shot in his own apartment by a Dallas police officer, a subject about which O’Rourke recently made headlines by calling out in a fiery speech to a black church.
Photo courtesy of NBC News.
Lawmaker Pushes For Marijuana Legalization In Kenya
A Kenyan lawmaker is introducing legislation to legalize marijuana nationwide.
Member of Parliament Kenneth Okoth wrote a letter to the National Assembly speaker on Friday, requesting help to prepare the legislation so that it can be published.
The bill would decriminalize cannabis possession and use, clear criminal records of those with prior cannabis-related convictions, enact a legal and regulated commercial sales program and impose “progressive taxation measures” in order to “boost economic independence of Kenya and promote job creation.”
It's high time Kenya dealt with the question of #marijuana like we do for miraa, tobacco, and alcohol#DecriminalizeIt #LegalizeIt #RegulateIt #TaxIt #HarmReduction #PettyOffences @YoungMPsKenya @HumanRightsMPs @KEWOPA @ICJKenya @lawsocietykenya @shecyclesnbi @DavidNdii @gathara pic.twitter.com/6ISnxjt2gS
— Kenneth Okoth, MP Kibra (@okothkenneth) September 21, 2018
Currently, marijuana (or “bhang,” as it’s locally known) is illegal in Kenya—as it is in most of Africa.
Another provision of the draft legislation concerns “research and policy development.” Okoth wants the country to conduct studies on the medical, industrial, textile and recreational applications of cannabis. And that research would have a “focus on the preservation of intellectual property rights for Kenyan research and natural heritage, knowledge, and our indigenous plant assets,” according to the letter.
Kenya Gazette special issue "..Act of Parliament to decriminalize the growth and use of Marijuana.." pic.twitter.com/gXFNx8ehbC
— The African Voice (@teddyeugene) September 21, 2018
“It’s high time Kenya dealt with the question of marijuana like we do for tobacco, miraa, and alcohol,” Okoth wrote on Facebook.
“Legalize, regulate, tax. Protect children, eliminate drug cartels, reduce cost of keeping petty offenders in jail. Promote research for medical purposes and protect our indigenous knowledge and plants before foreign companies steal and patent it all.”
Okoth’s push for legalization in Kenya comes days after South Africa’s Constitutional Court ruled that individuals can grow and use marijuana for personal purposes. The court determined that prohibition violated a person’s right to privacy, effectively legalizing cannabis in the country.
It’ll take a while for Okoth’s bill to move forward. The legislation will need cabinet approval, then it must be published so that all interested parties can review the proposal before it enters into parliamentary debates. Whether Okoth’s fellow lawmakers will embrace the legislation is yet to be seen.
Photo courtesy of Wikimedia.
Governor Signs Marijuana Legalization Bill, Making History In US Territory
With a governor’s signature on Friday, the latest place to legalize marijuana in the U.S. isn’t a state. It’s the Commonwealth of the Northern Mariana Islands (CNMI)—a tiny Pacific territory with a population of just over 50,000.
Under the new law signed by Gov. Ralph Torres (R), adults over 21 years of age will be able to legally possess up to one ounce of marijuana, as well as infused products and extracts. Regulators will issue licenses for cannabis producers, testing facilities, processors, retailers, wholesalers and lounges. Home cultivation of a small number of plants will be allowed.
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)
Photo courtesy of Max Pixel.