Documents obtained by Marijuana Moment reveal that the California Attorney General’s Office has solicited input from local governments and cannabis industry groups in order to draft an opinion regarding potential legal risks associated with allowing interstate marijuana commerce while federal prohibition continues.
Three organizations representing local government have responded to the Attorney General’s request, stating that they don’t expect California to be “significantly at risk” of federal enforcement action should officials authorize the importation and exportation of cannabis with other legal states.
California, Oregon, and Washington State all have laws that allow officials to enter cross-border cannabis trading agreements with other States, though Oregon’s law and Washington State’s require federal reforms or guidance in order to proceed. California’s law contains a provision that empowers Gov. Gavin Newsom’s (D) ability to draft interstate agreements is dependent on the Attorney General of the state determining that it would not be in the state’s best interest.
A request made by the Department of Cannabis Control of the state in January prompted the review currently underway at the California AG Opinions Unit. Marijuana Moment received emails and letters in response to Public Records Act requests. These documents provide a glimpse of the progress made in recent months.
DCC’s request in January asked if “a state law authorization pursuant to Chapter 25 of Division 10 of Business and Professional Code for medicinal or adult use commercial cannabis activity or both” between out-ofstate licensees and California licencees would result in a significant legal risk under the federal Controlled Substances Act.
Matthew Lee, DCC’s general counsel, told Marijuana Moment on Tuesday in a telephone interview that he had “no concern at all” over the time since the department made the request. He added that “we are very confident that the more you examine this issue and the more you will agree with our conclusion, the more you will be able to see the federal legal risks that it poses to the state.”
They have a serious job. “They need to be very, very careful when dealing with novel and complex areas of law, where stakes can sometimes be high,” Lee said about the attorney general’s offices. I believe that giving them the space and time they need to perform their duties is an important part of giving this office the respect it deserves. It should also take time.
Karim Kentfield, California’s Deputy Attorney-General, sent an email to a number of parties who might be interested in the issue after receiving the request from the agency. He asked for feedback. Kentfield stated that responses are to be submitted as soon as possible, ideally by April 4. However, “materials received later may still be considered.”
Records obtained by Marijuana Moment show that several organizations–including Rural County Representatives of California (RCRC), the California State Association of Counties (CSAC) and the California Cannabis Authority (CCA)–have shared their perspectives. Each group told the attorney general that they believe that allowing interstate marijuana trade would not result in federal enforcement.
CCA, a joint powers agency representing local governments and promoting cannabis industry oversight and taxes, sent a letter to the federal government in April saying that it did not believe repealing a state law that prohibits interstate marijuana commerce carries any risks.
The letter states that “Because of the explicit language of the CSA stating that’state laws are preserved except in cases of conflict so great as to prevent the two laws from standing together, it appears the implied conflict analysis for obstacle preemption is beyond the scope of [the CSA ],'”.” The letter states that “without a basis for the CSA preempting California’s repeal of its current ban on the sale of licensed commercial marijuana interstate, the legal risk to the federal government suing California under the CSA has been effectively nullified.”
RCRC, CSAC and CSAC sent a letter together in March acknowledging that “the prospect of state-authorized cannabis commerce across state lines often elicits skepticism at first glance.”
“How can an state allow interstate commerce when Congress has prohibited it? California’s first attempts to legalize commercial cannabis activities were met with similar skepticism,” the report said. “However in this case as well, the skepticism disappears when you examine it more closely.”
The groups stated that they believed “federal CSA action against California will be unlikely as a’result of state law authorization’ under Senate Bill1326…and more likely to succeed.”
It continued, “This is not a very high probability in both legal analysis and real life.” The Department of Justice requested that the Attorney General issue an opinion.
Lee, of DCC, said it was “always encouraging” to see that other intelligent and thoughtful lawyers reached the same conclusion as you on a new question.
He said that interstate commerce was a great way to increase the pie. “This is a win-win situation for everyone.” It’s good for the state. It’s a victory for the local government. It’s good news for licensees. It’s for the entire project of legalization, and everyone who gains from it.
The attorney general’s office did not release any letters or emails indicating that anyone who was consulted thought there was a risk that federal legal action would be taken against California simply for authorizing cross border marijuana commerce. Nevertheless, Marijuana Moment was able to obtain certain records that were not released under the provisions of California’s Public Information Law. These included documents covered by the attorney-client, work-product, and deliberative process privileges.
The Attorney General’s Office also invited comments from the American Trade Association of Cannabis and Hemp, but its president told Marijuana Moment the organization did not submit any input on the matter.
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Lee discussed this issue in a previous webinar, hosted by the Alliance for Sensible Markets. He argued that there was already an interstate marijuana market that had been established in the U.S.. It’s unregulated and operators are forced to choose between remaining legal, but keeping their products in a single state market or engaging in illegal activity by selling across the state line.
On a different but related legal issue, last year, a federal court in Maine upheld a lower court ruling that state marijuana law with residency requirements for businesses that sell cannabis violates the U.S. Commerce Clause. This clause is part of the Constitution and was meant to stop states from enforcing policy that unnecessarily restricts interstate commerce.
In November, a Oregon marijuana company filed a suit in another federal court declaring the current state ban on cannabis imports and exports from and to other states is illegitimate.
Other states that have legalized cannabis are considering passing legislation to allow for cross-border trading. New Jersey’s Senate President presented an interstate marijuana commerce law in the past year. A Maine legislative committee recently rejected similar legislation. However, the chair of the committee said that the issue could be revisited in another way.
Below, you can read the letter of local California government groups about the legality and interstate marijuana trade.
Top Alcohol Industry Association Offers Congress Advice on Regulating Hemp Derived Products Such as CBD and Delta-8 THC
Photo by Mike Latimer.
The article Local Government Groups Tell California AG that allowing interstate cannabis commerce would not risk federal enforcement, appeared first on Marijuana Moment.
