Last week, the Federal Drug Enforcement Agency (the “DEA”) announced that it would not be rescheduling marijuana under the Controlled Substances Act (the “CSA”). Thus, marijuana remains a Schedule I drug under the CSA and in the same category as heroin and other drugs that are considered not to have any legitimate medical use and have a high potential for abuse. The DEA’s failure to reschedule marijuana was disappointing but not surprising.
There was a bit of good news, however. The DEA also announced that it would amend its policy designed to foster research by increasing the number of DEA approved marijuana producers. Currently, only the University of Mississippi is approved to produce marijuana for research use. This change could help facilitate medical research ultimately leading to findings that would justify rescheduling marijuana.
Despite the DEA’s failure to reclassify marijuana, federal enforcement of marijuana drug laws are being curtailed in other ways. Earlier this week, a federal appeals court for the 9th Circuit ruled that the United States Justice Department could not prosecute medical marijuana cases in states where such activities were legal unless the DOJ could show that state laws were broken. More on the case can be found here. While not a complete prohibition on federal enforcement of marijuana laws, this ruling should preclude federal raids on legal medical marijuana business that operate in those states that are subject to the Ninth Circuit’s jurisdiction (Washington, Oregon, Alaska, California, Arizona, Montana and Hawaii).
What is unaffected by any of the above is the status of marijuana in Washington State. Although still illegal at the federal level, licensed marijuana business can operate legally pursuant to state law in Washington and individuals can purchase and consume limited amounts without fear of penalty under state law. As more and more states legalize marijuana, the federal government will likely have no choice but to reconsider its own regulations.
For more information on the regulation of marijuana businesses, please contact Heather Wolf.