Editor
Stanley S. Jutkowitz Seyfarth Shaw LLP |
Contributors
Sydney Jenkins Seyfarth Shaw LLP | Taylor J. Kolb Seyfarth Shaw LLP |
Avrohom Colev Posen Seyfarth Shaw LLP | Mary Watkins Seyfarth Shaw LLP |
John Carl “JC” Zwisler Seyfarth Shaw LLP |
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§ 5.1. Introduction
Laws and regulations relating to cannabis and the cannabis industry continue to evolve at a rapid pace. The current state of cannabis law is both confusing and complex. In order to put the latest developments in context, an explanation of the current state of the law regarding marijuana is in order.
The starting point is the Controlled Substances Act, 21 U.S.C. § 801 et. seq. (“CSA”), passed in 1970 to regulate the manufacture, use, and distribution of certain controlled substances for medical, scientific and industrial purposes and to prevent these substances from being used for illegal purposes. The CSA classified various drugs and chemicals into five categories, or schedules. Marijuana, along with heroin, cocaine, LSD and other substances, was placed on the most restrictive schedule, Schedule 1. The CSA prohibits the manufacture, distribution, sale possession or use of marijuana. The Drug Enforcement Agency has agreed to review the current scheduling of marijuana from Schedule 1 to less restrictive Schedule 3. Hearing on rescheduling originally slated to take place in December 2024 have been delayed until 2025. In the meantime, different groups have sued the DEA both to stop rescheduling and to challenge being excluded from the hearings.
The CSA also operates to prohibit the transportation of marijuana across state lines, even between states that have passed laws legalizing marijuana, as well as international borders, so the interstate and international transportation of marijuana remains illegal.
Despite the existence of the CSA, as of today, forty-one states plus the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands have laws legalizing marijuana for medical use, and twenty-four of those states, plus D.C. and Guam have legalized marijuana for recreational use, as well. According to one source, 54% of the US population lives in states with legal recreational adult use marijuana and 74% of the US population lives in states where marijuana is legal for either medial or recreational use. There have been some setbacks, however. In the 2024 election cycle, legislation to legalize adult use marijuana failed in Florida, North Dakota and South Dakota. Since the CSA is the law of the land, the question remains as to how states can “legalize” marijuana consistent with the preemption doctrine.
The laws relating …
