With new ballot initiatives surrounding marijuana appearing every year, the legal issues surrounding marijuana will become more and more relevant to our nation’s employers,
With new ballot initiatives surrounding marijuana appearing every year, the legal issues surrounding marijuana will become more and more relevant to our nation’s employers, especially those tasked with managing their legal risks and compliance. It is the company’s in-house counsel who will be charged with understanding the interplay between federal and state law on marijuana, and assisting the company in safely navigating the ever-changing tides of marijuana law.Beginning with California in 1996, 23 states and the District of Columbia—including Colorado in 2000—have enacted some form of medical marijuana legalization/decriminalization. In 2012, Colorado voters passed Amendment 64, legalizing recreational marijuana, and, joined by Washington, became the first states in the Union to do so. Most recently, Oregon and Alaska legalized recreational marijuana, as did Washington, D.C.
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To implement Colorado’s recreational marijuana amendment, the Colorado Legislature tasked the Department of Revenue and the Department of Public Health and Environment with regulating marijuana cultivation, sale and taxation.
Coloradoans 21 or older can purchase up to one ounce of marijuana at a time, and can grow up to six flowering plants at a time. They may consume marijuana in private, but the public consumption of marijuana remains illegal, as well as driving under the influence.
With respect to the federal government’s enforcement of the CSA, the Obama administration has issued several policy statements (popularly termed the “Cole Memos”) indicating the executive branch will focus on eight law enforcement and prosecutorial priorities (“the Great Eight”), as opposed to vigorously enforcing federal marijuana laws. These policy objectives include preventing:
- the distribution of marijuana to minors;
- revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
- the diversion of marijuana from states where it is legal under state law in some form to other states;
- state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- violence and the use of firearms in the cultivation and distribution of marijuana;
- drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- growing marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- marijuana possession or use on federal property.
As mere policy statements, however, the administration’s pronouncements of prosecutorial and investigative priorities can carry no legal force or effect, and could be reversed by future administrations.
In order to allow banking for the marijuana industry, Colorado recently took steps to create the world’s first credit union for the industry, the Fourth Corner Credit Union. Although it has been issued a state charter, it awaits insurance from the National Credit Union Administration, a process that can take two years. In the interim, it will be able to operate pending the insurance decision.
With the Colorado Supreme Court’s addition of Comment 14 to Colorado Rule of Professional Conduct 1.2 in March of 2014, Colorado attorneys are now able to counsel and represent the marijuana industry without fear of running afoul of the state ethics rules. The U.S. District Court for the District of Colorado, however, opted out of Comment 14, and, therefore, attorneys appearing in the federal court are barred from advising clients in the industry with regard to future conduct.
As an example of the schism between state and federal courts, the U.S. Bankruptcy Court for Colorado has on at least two occasions dismissed bankruptcy petitions filed by marijuana industry participants, based on their violation of federal marijuana laws.
Colorado employers and employees recently received more guidance on marijuana in the workplace when, on June 15, 2015, the Colorado Supreme Court upheld the termination of an employee for testing positive for marijuana.
The court held that despite the facts that the employee possessed a Colorado medical marijuana card, and used marijuana after work hours, the activity was not “lawful” under the CSA, and, therefore, not lawful conduct under Colorado’s statute which protects employees from termination for lawful conduct they engage in during non-work hours.
With regard to Washington, residents 21 and older may possess up to one ounce of marijuana. Public consumption is banned, as in Colorado.
Like in Colorado, employees are not provided protection from termination for its consumption. The state taxes retail marijuana sales at 37 percent.
Washington, D.C. is one of the most recent jurisdiction to have legalized the use of recreational marijuana and, as of February 26, 2015, residents can possess up to two ounces of marijuana, and grow six plants, only three of which can be mature at any given time. Sales of the drug are illegal, but transfers of an ounce or less are legal.
Approximately 20 percent of Washington, D.C. sits on federal lands, and, therefore, possession of marijuana in those areas remains illegal. Washington, D.C.’s move is especially thorny as Congress has oversight over the District.
And on July 1, 2015, recreational use in Oregon became legal under its laws, with more states expected to follow.
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