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Expert Advice Interview: A Consumer’s Guide to Cannabis Law

Insight into how consumers can navigate the growing legal recreational cannabis market.
Weed Cannabis

Green Light Law Group’s Bradley Blommer and Perry N. Salzhauer offer insight into how consumers can navigate the growing legal recreational cannabis market. 

What are the requirements for purchasing recreational cannabis?

In recreational cannabis states, individuals 21 years of age or older can purchase cannabis products from state-licensed dispensaries. Although, state laws often limit the amount of cannabis that may be purchased at a single time, typically no more than one ounce of flower product. Individuals must provide proof of age via government-issued identification in order to purchase recreational cannabis from a dispensary. While Washington, D.C. has legalized recreational cannabis possession and cultivation, commercial cannabis sales are not allowed, so individuals living in D.C. do not have access to recreational cannabis dispensaries. Instead, individuals can grow their own cannabis plants for personal consumption, up to six plants at a time, and may also “gift” up to one ounce of cannabis to another individual. This means you cannot accept money for this “gift.”

Once someone has purchased cannabis, where can they consume it legally?

Public cannabis consumption is one of the biggest issues facing recreational cannabis states, as recreational cannabis states often prohibit the use of marijuana in public. Individuals may still be subject to civil penalties for public cannabis consumption in recreational cannabis states. Some recreational cannabis states have begun to consider legislation allowing for state-licensed cannabis clubs, which would allow for cannabis consumption indoors under certain circumstances. A new law passed at the end of 2017 that now allows businesses like cafes and art galleries to allow consumption on the businesses’ premises. Individual jurisdictions can elect to allow this type of “public” consumption or not. The first coffeeshop that allowed cannabis consumption just opened in Denver recently.

Additionally, California, Maine, and Massachusetts allow for the establishment of “licensed marijuana businesses,” which may or may not permit the smoking of marijuana indoors. Public health advocates have argued that state Clean Indoor Air laws apply to both tobacco and marijuana smoke, so existing state law already prohibits public cannabis consumption. However, state lawmakers frequently argue that allowing public pot use is a good thing, as it will allow the state to attract pot-puffing tourists hailing from states where cannabis remains illegal for recreational use, or otherwise.

Where can people legally purchase cannabis?

In the seven states where recreational cannabis is legal, cannabis consumers can obtain a variety of cannabis products through state-licensed dispensaries. However, many local cities and counties located in recreational cannabis states prohibit the establishment of marijuana-related businesses, so consumers might need to venture outside of their local community to obtain cannabis. As noted above, individuals in Washington, D.C. do not have access to licensed retail dispensaries, so they must either grow their own plants for personal use, or find a friend who is willing to share up to an ounce of marijuana, as permitted by law.

Where can they travel with their cannabis legally?

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I think this is one of the most confusing issues for cannabis consumers, since people often assume that you can transport marijuana products between two recreational marijuana states without consequence. However, transporting any amount of marijuana across state lines, even between two recreational marijuana states like Washington and Oregon, is absolutely and unambiguously illegal as a matter of federal law. When an individual transports marijuana across state lines, they are technically committing “drug trafficking” under the federal Controlled Substances Act. States like Oregon, Nevada, and California, have gone one step further by making it a criminal offense under state law to transport marijuana products across state lines. Many states have even required product warning labels indicating that the transfer of cannabis products across state lines remains illegal under federal law, and in some cases, state law as well. 

The takeaway: If you transport any amount of marijuana across state lines, you are in violation of federal law, possibly state law, and this remains true even if you transport marijuana from one recreational marijuana state to another recreational marijuana state. At the end of the day, federal law still applies, which means you are still subject to prosecution for drug trafficking, regardless of amount.

What are the laws regarding cannabis use in the workplace?

Federal employment law protections do not apply to medical cannabis use, let alone recreational cannabis use, so an employee must look to state laws, if any, for protection. In recreational cannabis states, employers can still prohibit both on-site and off-site marijuana use, as employers can require employees to comply with drug-free workplace policies. Additionally, employers can require drug tests for both current and prospective employees, which means an individual who uses marijuana outside of work, even occasionally, could fail a mandatory drug test. This is because employees can still test positive for THC several days, even weeks, after using marijuana, so an employee who has THC in their system may be fired by an employer for failing a mandatory drug test.

Why can an employer require a drug test even though cannabis is legal in the state?

Private employers are free to enact zero-tolerance, drug-free workplace policies because the law recognizes the importance of allowing employer-specific rules that ensure workplace safety. In the case of employees responsible for operating heavy-duty machinery or equipment, employers are generally concerned about their own legal liability, as well as the safety risks to other employees in the workplace and potentially other members of the public who come into contact with the employee. 

In cases challenging the legality of tobacco-free workplace policies, state courts have generally agreed that there is no constitutional right to smoke, so tobacco-using employees are not a protected class as a matter of constitutional law. This means smokers have no protection under federal employment anti-discrimination laws, and the employee must look to state law for protection against discrimination. To put this in perspective, many hospitals and other medical businesses have begun imposing smoke-free policies that extend to off-duty tobacco use, requiring job applicants, as well as prospective employees, to submit to testing for nicotine. This allows employers to prohibit smoking in the actual, physical workplace, as well as outside the workplace, because individuals can still test positive for nicotine even if they last used tobacco several days ago.

What are the rules regarding driving an automobile after someone has consumed cannabis?

An individual can be convicted of driving while intoxicated (or under the influence) of marijuana, even if recreational and medical marijuana use is permitted under state law. The difficulty for law enforcement is enforcement, as someone can test positive for THC long after they have used marijuana. In reality, state law enforcement agencies have trouble determining whether an individual who tests positive for THC was actually impaired while driving. In some cases, individuals test positive for both THC and alcohol, or other drugs, which means the individual can be charged with driving under the influence of an intoxicating substance even without proof that the individual was driving while high.

Where are the best resources where consumers can go to learn about the cannabis laws applicable to their state?

Vanderbilt law professor Robert Mikos recently published a casebook on marijuana law and policy, which includes information on the various state laws governing cannabis consumption. Professor Mikos also maintains a companion website, which contains a list of marijuana law and policy resources for consumers. Other reputable resources include: Green Light Law Group Blog, Marijuana Policy Project, Drug Policy Alliance, NORML, as well as the Marijuana Law, Policy, and Reform blog maintained by OSU Moritz Law Professor Douglass Berman, located here

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