New Medical Marijuana Law Could Come With Federal Consequences

by RUSTY MARKS 

On April 19, Gov. Jim Justice signed into law Senate Bill 386, which makes West Virginia the 29th state to legalize the use of marijuana for medical purposes.

“We’ve done something that’s goodness in my opinion,” Justice said at the time, adding that legalizing the drug could help Mountain State citizens who would have trouble finding relief for severe pain without the new law.

But not everyone thinks legalizing marijuana — even for compassionate medical reasons — is a good idea.

House Speaker Tim Armstead, R-Kanawha, has opposed any legislation that would legalize marijuana in any form and voted against Senate Bill 386. Armstead based his objections in part on concerns the administration of President Donald Trump would clamp down on states that have legalized marijuana, which remains illegal under federal law.

Heather Trela, writing for the New York-based public policy research organization the Rockefeller Institute of Government, said there is a real possibility Trump could take federal action against states that have legalized marijuana.

“Although the majority of states have relaxed regulations of marijuana use and public support for marijuana legalization is at an all-time high, the federal government classifies marijuana as a Schedule I substance under the Controlled Substances Act — the same classification as heroin,” Trela wrote. “Regardless of the legislation of individual states, marijuana is still illegal under federal law.

“The Obama administration took a mostly hands-off approach to the actual enforcement of federal law; in 2009, then-Deputy Attorney General David Ogden wrote a memo to U.S. attorneys indicating that prosecuting those who are ‘in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana’ were not going to be a priority,” Trela continued.

“After the passage of legislation in Colorado and Washington allowing for recreational marijuana usage in 2012, then-Deputy Attorney General James Cole issued a subsequent memo to U.S. attorneys, reiterating that ‘in jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems,’ enforcement of federal law related to marijuana would not be a priority.”

But things could be different under the Trump administration. Asked in February whether the administration would clamp down on federal marijuana laws, at least in terms of recreational marijuana, White House Press Secretary Sean Spicer told reporters, “I do believe that you’ll see greater enforcement of it. Because, again, there’s a big difference between the medical use which Congress has, through an appropriations rider in 2014, made very clear what their intent was, in terms of how the Department of Justice would handle that issue.”

Attorney General Jeff Sessions also has come out against the legalization of marijuana. Sessions sent a memo April 5 to U.S. attorneys around the country telling them he had set up a task force on crime reduction and public safety, including a subcommittee to review of existing marijuana policies “to ensure consistency with the Department’s overall strategy on reducing violent crime and with administration goals and priorities.”

W.Va.’s New Law

As approved by the governor, West Virginia’s new medical marijuana law allows a citizen to get a medical card entitling him or her to get marijuana for medical purposes under the guidance of a doctor, beginning in 2019. Those with certain terminal illnesses can get permission to obtain medical marijuana from other states with strict medical marijuana laws beginning in 2018.The law provides for administering the drug by pill, tincture, patch, oil or other methods, but patients may not smoke marijuana, nor may they grow their own plants for medicinal purposes.The law also allows up to 10 licensed growers of medicinal marijuana, up to 10 processors to turn the raw material into an approved form for treatment and up to 30 dispensaries around the state. A commission overseen by the state Bureau of Public Health will set up rules and regulations for the prescription and administering of medical marijuana.

Bureau of Public Health Commissioner and state health officer Dr. Rahul Gupta said the commission first will look at regulations for growers before moving on to processors and dispensaries. Gupta said work soon will begin on deciding how best to regulate administering medical marijuana and the state’s fledgling medical marijuana industry.

Federal Pitfalls

Even if the Trump administration does not directly target states that have legalized marijuana, there are still federal obstacles that could make creation of a marijuana industry much harder.

Federal banking laws prohibit the use of credit or debit cards to buy marijuana, and revenue from marijuana sales cannot legally be stored in banks insured under the Federal Deposit Insurance Corp.

Marijuana businesses also are prohibited from deducting business expenses for tax purposes, Trela wrote.“Of everything that needs to be done in order to do business, that is the biggest obstacle,” said Keith McMillion, president of the Alternative Economic Development Association of West Virginia, a trade organization set up to represent the emerging marijuana industry.

“Growing is really not going to be that hard,” said Don Smith, who already is involved in several businesses related to the hemp industry.

“The real trick with any of this is quality control,” Smith said, adding that the key to a successful medical marijuana industry is a consistent, quality product.

Smith said figuring out how to work within federal guidelines could be tough. But, he said, “If Jeff Sessions decides to shut (the industry) down, I’m quite sure it won’t go down so well.”

McMillion believes the banking industry will loosen restrictions on money from marijuana as more states legalize the drug. “They can’t roll it back at this point,” he said. “It’s just not possible.

“There is continual pressure on the federal level to loosen regulations on what banks can and can’t do,” McMillion said.

Even under existing federal restrictions on what can and can’t be done with money from the marijuana industry, “There are 28 other states doing this,” McMillion said. “They’ve figured something out.”

Just Because They Can

Many observers don’t think Trump will actually go after states that have legalized marijuana for medical purposes.Pat McGinley, who teaches constitutional and administrative law at West Virginia University, said he believes the federal government is more interested in marijuana for recreational use than for legitimate medical use.“If there is a change in Justice Department policy, it would be far more expensive to target both recreational and medical marijuana,” McGinley said.

McGinley said even Sessions’ public remarks have been aimed at recreational marijuana. “I just don’t think the focus is on medical marijuana,” he said.

McGinley doesn’t think West Virginia has much to worry about running afoul of federal regulations.
“The West Virginia bill is thoughtfully crafted with an eye to federal concerns, with a goal of easing pain and suffering,” McGinley said.

McGinley and others believe it is only a matter of time before the federal government decriminalizes the use of marijuana.

“This Nixon-era war on drugs has been nothing more than a spectacular failure,” said Smith. “It’s the worst public policy miscalculation in United States history.”