There has been some speculation about whether cannabis might finally be made legal at the federal level in 2023. While that seems unlikely, our legal team will be continuously monitoring any developments, as it could impact how issues pertinent to our cannabis business clients are approached at the state and local level as well.

Here, we’re outlining some of the common questions that arise from individuals, businesses, employers, property owners, etc.

Where is Cannabis Legal in the U.S.?

The maze of state laws on cannabis – recreational, medicinal, CBD/low THC products – there is little consistency. In most Western states (California, Oregon, Washington, Nevada, Arizona, New Mexico, Colorado, and Montana), marijuana is legal both for recreational and medicinal purposes. Limits on precise quantities vary from state-to-state. Utah allows for medicinal marijuana, as well as CBD. Wyoming still criminalizes marijuana, with possession of even small amounts triggering a misdemeanor punishable by up to 6 months in jail and/or a fine of $750. Possession of three ounces can be punished by up to 1 year in jail. CBD is legal there, though. Texas allows for CBD possession, but marijuana is still illegal – and recent efforts to decriminalize possession have stalled.

Just three states in the country have no public-use marijuana program of any kind: Idaho, Kansas, and Nebraska. Idaho criminalizes all possession and distribution of marijuana and its extracts.

This past election, voters in South Dakota, North Dakota, and Arkansas rejected ballot initiatives to legalize marijuana for recreational purposes. Medical marijuana, however, is legal in all three of those locations. It’s possible that by the end of 2023, other states could have expanded marijuana access. Voters in Oklahoma are slated to decide on the issue in a March election. In Ohio, the legislature is weighing a bill that would legalize sale and use of marijuana for recreational purposes.

What Are the Rules for Cannabis in California?

Here in California, medicinal use was approved by voters in 1996. Recreational use marijuana did not become legalized until 2016. That said, possession is only lawful for adults 21 and older. Anyone under 18 caught in possession of marijuana may be referred for drug education, counseling, or community service. Anyone who’s at least 18 but younger than 21 caught with marijuana will be fined $100. Minors can lawfully have marijuana administered for medicinal purposes if they have a medical marijuana ID card. State health and safety codes limit individual marijuana possession to 28.5 grams of flower or 8 grams of concentrated cannabis (basically, about 1 ounce). You’re also legally allowed to grow up to 6 plants at home, though the local government may have additional restrictions, such as requiring permits for indoor growing. If you have more than the allowable limit, you may be subject to a 6-month jail sentence.

Public Use

Possession of marijuana is one thing, but public use is another. Adults over 21 can lawfully possess the drug (in the aforementioned quantities), but it is not lawful to smoke marijuana in public spaces. There’s a minimum $100 penalty for a violation, but it can be as much as $250 if you’re doing so in a place where smoking tobacco is also unlawful. You are not allowed to use cannabis in state parks or national parks either. If you smoke within 1,000 feet of a school, day care, other facility where kids are typically present, you can be facing even higher fines. Smoking or consuming cannabis products – or even having an open container of them – is not allowed if you’re riding or driving a car, boat, or aircraft. (If you’re operating any of these vehicles while under the influence of cannabis, the criminal penalties are severe, particularly if you cause an accident and especially if someone is hurt.)

In Schools

As previously noted, use of cannabis near a school or daycare is unlawful. But even simply possessing the drug is a problem if you’re on school grounds. If you’re caught with cannabis at any K-12 school – even if you’re of-age and you’re under the legal possession limit – expect stiffer penalties. For those under 18 carrying under the statutory maximum, it’s a $250 fine. Subsequent offenses can result in a $500 fine and possible jail time.

Sale of Marijuana

Selling marijuana is not lawful in California unless you have a license to do so from the state and/or local government. You can, however, legally gift marijuana or marijuana products to others (assuming they are not underage) without a license.

When Traveling

As noted before, you can’t have open containers of cannabis in a car, boat, or airplane. But usually where people run into problems is when crossing state borders and/or flying. Outside of certain marijuana business operations (and even those have had legal difficulty), traveling state lines in possession of cannabis is against the law. This is true even if you’re coming from a state where recreational use is legal and going straight into another state where it’s legal. That’s because possession is still illegal under federal law, and the crossing of state borders gives the federal government jurisdiction. The federal government is also responsible for air traffic control, which is why possession

In airports, rules can get a little fuzzy. For example, marijuana is legal to possess in California. Therefore, staff at some airports will allow travelers to possess the legal amount, of up to 28.5 grams. However, once you go through TSA, all bets are off because the Transportation Security Administration is a federal government agency – and marijuana is illegal under U.S. law. If a TSA agent finds marijuana – on your person, tucked into your purse, or in your suit case – they can (if they choose) report it to local, state, or federal authorities. That said, it’s unlikely you’ll be arrested (so long as you are 21 or older and/or have a medical prescription and you aren’t possessing an amount in excess of what’s legal in California). TSA’s primary focus is security, but you may have to toss it before you proceed through the terminal.

At Work

A recently-passed law shields employees from so-called “weed bias” from employers. It prohibits discrimination or discipline against workers based on their use of marijuana off-duty and off-site. That means simply testing positive for marijuana use as an adult over 21 shouldn’t be used against you in the hiring, employment, or termination processes. However, there are exceptions for certain industries (building and construction, primarily), as well as those jobs that require federal background clearances. Further, it doesn’t protect workers who consume marijuana on-the-clock or show up to work high. Worth noting: That law doesn’t go into effect until next year.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Where will marijuana be legal in 2023? Dec. 31, 2022, By Alix Martichoux and Nextstar Media Wire, The Hill

More Blog Entries:

Potential Complications for California Cannabis Company Real Estate Lending & Commercial Leases, Dec. 26, 2022, Los Angeles Marijuana Lawyer Blog

• A measure to allow legal marijuana businesses to take advantage of more tax deductions – in a departure from IRS policy.
• A measure to provide free medical marijuana to low-income patients – and exempting those products from state-level taxes.
• A measure directing California regulators to provide the U.S. Department of Agriculture with a program plan for industrial hemp in accordance with the 2018 Farm Bill, which legalized the non-THC crop and its derivatives (which include CBD).

In addition to passing these laws, the governor vetoed a bill that would have allowed medical marijuana to be used in hospitals and other health care facilities.

Our Los Angeles marijuana lawyers are committed to helping our clients navigate the ever-changing legal landscape of California cannabis law and regulation. With so much at stake, marijuana businesses cannot afford to ignore these changes.

Tax Law Changes

Federal tax law – specifically section 280E – prohibits those who grow, process and sell marijuana from being allowed to deduct taxes, due to the fact that the business profits from marijuana, which is illegal under federal law. Up until this point, California tax law closely matched U.S. tax law.

Now, AB 37 changes that, departing from Internal Revenue Service Policy under 280E. The measure will allow cannabis companies to take state-level deductions just like any other business – from Jan. 1, 2020 to Jan. 1, 2025. The bill takes effect immediately as a tax levy.

Greater Access for Low-Income Residents

Another measure gives greater access to medical marijuana for low-income patients. SB 34 changes the law with regard to “cannabis donations.” Existing administrative law bars licensed cannabis retailers from providing free cannabis to anyone at a licensed premises. There is a narrow exception for licensed medical marijuana retailers and those with micro-business licensees that are providing medical marijuana to patients who struggle to afford it.

SB 34 authorizes all licensed cannabis shops to offer free or reduced-cost marijuana or related products to medical marijuana patients who meet certain medical and income requirements. The bill further exempts marijuana businesses from being taxed on these “donations.”

No Cannabis in Hospitals

One measure that failed was SB 305, which would have required some health care facilities to allow medical marijuana access to terminally ill patients on site. In a veto message, the governor said he “begrudgingly” declined to make the measure law – for fear it would have jeopardized Medicaid and Medicare funding for those facilities. Those programs are subsidized by federal tax dollars, and using that money for an outlawed Schedule I narcotic could have cost the healthcare industry dearly. The governor called it “inconceivable” that the federal government continues to treat cannabis as if it has zero medicinal value. Still, groups like California NORML criticized the governor’s decision, noting there were exemptions in the bill if where federal agencies held or notified hospitals that they were in violation of the law. The original version of the bill covered more than just terminally ill patients, as the final version did. The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

California Governor Signs Marijuana Tax Fairness Bill But Vetoes Cannabis In Hospitals, Oct. 13, 2019, Forbes

The company purchased the real estate in this small town and has been working to renovate the businesses already in existence and also to add new landscaping and hardscaping features. They are currently constructing a pond and digging up the streets for underground utilities. As more workers and interested residents come to the town the population is growing and there are already more than 25 people living in what was essentially a ghost town. There is not marijuana for sale in the town yet as they have to way to til 2018, but they are working on residences, lodging, cafes, and many other business that will hopefully generate a lot of revenue as people flock to the resort.

The ultimate goal is to create a safe, self-sustaining place for people to smoke openly in outdoor lounges, restaurants, microbreweries, a medical academy and a wellness spa.

The company that is creating this town is one that has been manufacturing and selling medical marijuana vending machines for quite some time. While the concept of a medial marijuana vending machine might sound odd, these machines are able to verify the user’s age before dispensing any marijuana products. While the machines are capable of dispensing actual cannabis products, they have only been used in U.S. to dispense cannabidol or CBD oil products. These products are in somewhat of a gray area prior to the legal sale of recreational marijuana as our Los Angeles cannabis business attorneys can explain.

The reason CBD and CBD oil products fall in somewhat of a gray area is because THC is the component of marijuana that gets people high. CBD, which is also found in hemp plants, does not contain any measurable quantity of THC, so it is being sold and is not often being targeted for enforcement. However, the law is not always so easy to understand on this issue so it is best to speak with an experienced medical marijuana attorney who can explain how that law applies to the facts of your actual situation.

With respect to this new town, it is not actually new at all. Developers say that it has been there for more than 130 years, and the current residents have rights that must be respected. Company representatives say they are not building a town, but rather shaping an existing one into the town of the future. Whether this is really the town of the future, it is certainly something that has not been done before and if market in other states is any example, this town will be very popular in the marijuana tourism industry.

The Los Angeles Cannabis Law Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Bought by a marijuana company, small California town on way to becoming pot mecca, November 14, 2017, By Trevor Hughes, USA Today

More Blog Entries:

Rescheduling Marijuana Could Help Researchers, April 22, 2016, by Cannabis Law Group

The conflict between state and federal law is apparent in many aspects of California life. Cannabis businesses cannot bank in federal institutions, because their finds are considered illegal drug money. Federal employment is usually unavailable to Californians who use marijuana (whether recreationally or medicinally). And in perhaps the most confusing of all restrictions, marijuana use is illegal on federal lands within state borders.

The Sacramento Bee reports that the National Parks Service will continue to enforce federal marijuana prohibitions on national park lands within California, just as it did prior to the legalization of recreational marijuana in California as of November 2016. “Marijuana – recreational, medicinal, or otherwise – remains prohibited on federal public lands and property, regardless of state laws. So there is no change: we will continue to enforce marijuana prohibition as before,” says NPS spokesman Andrew Munoz. The National Parks Service has jurisdiction over the Redwood National Park, Golden Gate National Recreational Area, Alcatraz Island, Yosemite National Park, Joshua Tree National Park, Cabrillo National Monument, Death Valley National Park, and many other popular tourist destinations around California.

The Politics of Enforcing Marijuana Laws

Federal enforcement of marijuana laws has been inconsistent, and highly dependent upon the policies of the ruling political party. Former President Barack Obama explicitly deprioritized the prosecution of federal defendants who had not violated state marijuana laws. Current President Donald Trump, on the other hand, has appointed Jeff Sessions to lead the Department of Justice as Attorney General. Sessions is a well-documented marijuana opponent. It does not appear as if he will take Obama’s lax approach to federal marijuana law enforcement policy.

Meanwhile, state law enforcement agencies have a surprising amount of latitude to enforce whichever cases best suit their needs. Rolling Stone reports on a growing trend of marijuana law enforcement by local agencies. Because federal law currently prohibits the DEA from participating in investigations of cannabis businesses that are in compliance with state laws, local law enforcement agencies can keep the cash, goods, paraphernalia, and other evidence seized in such investigations. Local law enforcement agencies are therefore under pressure to seize as many assets as possible before cannabis business regulations take effect in 2018 (at which point there will be less ambiguity about whether a business is in compliance with state law, making it more difficult to investigate businesses and seize assets).

Ultimately, enforcement of marijuana law will continue to be uncertain – and heavily influence by current politics – for as long as conflict exists between state and federal marijuana laws. This conflict and confusion results in harsh federal prosecutions for activities made legal by state law. Defendants can face federal marijuana charges, state marijuana charges, or both. Our experienced cannabis lawyers in Orange County can help.

The Los Angeles Cannabis Law Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Pot’s legal in California. So why are people still getting busted in Yosemite?, January 9, 2017, by Sean Cockerham, the Sacramento Bee

More Blog Entries:

Marijuana Arrests Fall in 2017, Still Higher Than for Violent Crimes, October 26, 2016, Cannabis Law Group