Cannabis(ness), Patient, or Recreational User be Assured They Will Not be Subject to DOJ Enforcement for Activities in States that have Legalized Marijuana?

November 11, 2015

By John A. Gilbert, Jr. & Larry K. Houck

Yes, with passage of the State Marihuana (sic) and Regulatory Tolerance (“SMART”) Enforcement Act.  The bill, H.R. 3746, introduced by Representative Suzan DelBene (D-WA), would authorize the Attorney General to waive the marijuana provisions of the federal Controlled Substances Act (“CSA”) in states that have legalized marijuana for medical or recreational use.  Congresswoman DelBene explained, “My bill will fix the conflict between state and federal law by giving the U.S. Attorney General authority to waive the Controlled Substances Act for states that are effectively regulating marijuana themselves, such as Washington.”  If passed, the bill would protect medical marijuana patients, recreational marijuana users and marijuana-related businesses in states that have legalized marijuana from federal prosecution.

Although a number of states have passed laws legalizing marijuana for medical or recreational use, federal law prohibits the possession, cultivation or distribution of marijuana and prohibits operating a business for these purposes.  The bill would formalize a process by which states could certify that they have implemented regulatory schemes sufficient for adherence to the federal enforcement priorities set forth in Department of Justice (“DOJ”) guidance issued in August 2013, and again in February and March 2014.  The DOJ guidance observed that its agencies are unlikely to take action against a marijuana business operating in compliance with state law if it does not implicate one of the eight enumerated enforcement priorities where states “have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, [whose] conduct in compliance with those laws and regulations is less likely to threaten the federal priorities.”

The SMART Enforcement Act would provide a mechanism for states that have legalized marijuana to request a waiver from the Attorney General by certifying that they have or will implement a regulatory regime sufficient to protect the following federal priorities:

  • Preventing distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana to criminal enterprises, gangs and cartels;
  • Preventing diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing growing marijuana on public lands and the public safety and environment dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

Although not a federal priority, the Act would also require states to certify that their regulatory scheme prevent the distribution of tainted marijuana.

For their parts, states must agree to study and report annually to the Attorney General about marijuana legalization and youth marijuana use, rates of driving while intoxicated, marijuana diversion to other states and the prevalence of drug-related organized crime activity.

The Attorney General would have 90 days following receipt of a request to issue a finding that the state has met the regulatory conditions for a waiver or explain why the state has failed to do so.  Failure of the Attorney General to issue a finding within 90 days would equate to the state meeting the conditions.  A waiver would remain in effect for three years, and a state could submit a request for subsequent three year periods.  The Attorney General may continuously review marijuana activities within a state that has a waiver, and after providing notice and an opportunity to correct any failure, could revoke a waiver upon finding that the state no longer meets the conditions.

The SMART Enforcement Act would assure patients, recreational users and businesses in states that have legalized marijuana and obtained a waiver from the Attorney General, that DOJ will not take enforcement action against them for marijuana activities compliant with state law.  By the same token, the process would assure the Attorney General that states have implemented, or will implement, a regulatory scheme sufficient to minimize the risk of violation of enforcement priorities, allowing DOJ to focus its resources in other areas.  The Act would also authorize the Attorney General to revoke state waivers when necessary.

The bill was introduced and referred to the Judiciary and Energy and Commerce Committees on October 9, 2015, and referred for committee consideration to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations on November 3, 2015.