October 2019 - Volume 16 - Issue 4 | Thursday October 17, 2019

Legalizing Marijuana: Don't Count Your Chickens Before They Hatch!

In the aftermath of the elections, last November, proponents of legalizing marijuana scored a number of victories. For them, the goal of legalizing marijuana nationwide seems closer than ever. However, the elections have released counter-forces that may seriously upset their vision of the future of marijuana in the United States.

In August 2013, the Department of Justice issued guidance to states indicating that this agency intended to devote fewer resources to investigating and prosecuting individuals who distribute and consume marijuana in a manner that is consistent with state law. Later, the so-called "Hinchey-Rohrabacher Medical Marijuana Amendment" to the Consolidated Appropriations Act of 2016, prohibited the expenditure of federal funds to prosecute individuals whose marijuana-related activities are permitted under the relevant state law (an analogous amendment is included in the proposed 2017 Consolidated Appropriations Act). There also have been signs that the federal government is considering reclassifying marijuana from a Schedule 1 to a Schedule 2 drug.
In Florida, the "Compassionate Medical Cannabis Act of 2014" permitted a limited number of patients to legitimately obtain marijuana for medical purposes. Last November voters overwhelmingly approved the adoption of "Amendment 2", which greatly expands the permissible uses of medical marijuana in the State. Under certain circumstances, this amendment to the Florida Constitution decriminalizes the production, distribution, prescription, and consumption of marijuana.
Taken together, the Justice Department's guidance, the Hinchey-Rohrabacher Amendment, and Amendment 2 seemed to clear the way for the development of a medical marijuana industry in Florida. Indeed, over half the states have enacted legislation that permit the use of marijuana for medical and/or recreational use. The rapid manner in which these states, which contain more than half the population of the United States, have liberalized their laws regarding marijuana dispensing, possession, and use indicate that this should be an issue that is no longer controversial and well on its way to national acceptance (at least with respect to medicinal uses of marijuana).
The November Elections
The national election results, however, cast doubt on these efforts to legalize the prescription, production, distribution, prescription, possession, or use of marijuana in the United States, at least in the near future. Neither President-elect Trump, nor Secretary-designate Price appears to have announced their view regarding the legalization of marijuana. However, there are Members of the House of Representatives, primarily political conservatives, who do not view this development favorably. They may have the ability to block adoption of the 2017 version of the "Hinchey-Rohrabacher Medical Marijuana Amendment." Also, congressional opposition may be sufficient to thwart any attempt to reclassify marijuana as a Schedule 2 Drug.
From the perspective of federal law enforcement, support for legalizing marijuana (in any form or for any purpose) also seems unlikely. Attorney General–designate Jeff Sessions, who built his reputation on being a strong law enforcement advocate, does not seem to be a likely candidate for supporting the legalization of marijuana. As such, there is a very distinct possibility that DOJ will significantly shift its view away from current flexible enforcement policy in this area.
Caveat Emptor
While a majority of states have adopted laws legitimizing the production, prescription, distribution and use of marijuana (some states only for medical purposes, other states have included recreational uses), in light of uncertainty regarding the federal government's future position "buyer beware" may never be more relevant than for those physicians, healthcare providers and vendors who venture into the medical marijuana industry.

Stephen H. Siegel, Of Counsel, Broad and Cassel, can be reached at (305) 373-9424 or shsiegel@broadandcassel.com.

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