On June 20, 2019, the House approved by a vote of 267 to 165 an “Appropriations Minibus” amendment sponsored by Rep. Earl Blumenauer (D-Oregon) that would prohibit the Department of Justice (“DOJ”) from using appropriated funds to prevent any state, U.S. territories, or Washington, D.C. “from implementing their own laws that authorize the use, distribution, possession or cultivation of marijuana.”  This amendment builds on a prior appropriations rider, originally enacted in 2014 and renewed every year thereafter, which prohibits the DOJ from using federally appropriated funds from prosecuting state compliant medical businesses.  The current measure goes beyond the prior amendment by expanding protection to all state compliant businesses, medical and recreational.  On June 27, 2019, as a follow-on to the House vote, Sen. Ron Wyden (D Oregon) and Blumenauer introduced in the Senate and House respectively, the State Cannabis Commerce Act which provides in pertinent part:

No funds authorized or appropriated by Federal law, and none of the funds in any trust fund to which funds are authorized or appropriated by Federal law, shall be expended to prevent any State from implementing any law of the State that – (1) authorizes the use, distribution, possession, or cultivation of marijuana on non-Federal land in the State; or (2) authorizes the transportation of marijuana across the border of the State if – (A) the State from which the marijuana is transported has a State law described in paragraph (1); and (B) the State and the State from which the marijuana is transported have both authorized such transportation of marijuana between the States.

In other words, as explained by Wyden and Blumenauer in a June 27, 2019 press release, “the State Cannabis Compliance Act would make the protections contained in the existing appropriations rider permanent and expand them to include all cannabis producers and consumers in compliance with state law.  The legislation would also protect producers or consumers who transport cannabis between cannabis-legal states, provided that both states have legal cannabis programs and that both states affirmatively agree to the transportation.”  Although neither the Blumenauer Amendment nor the State Cannabis Compliance Act would actually legalize cannabis at the federal level, if passed, they would provide state compliant cannabis businesses with much stronger protection from federal prosecution and therefore would be one of the most significant steps yet in federal cannabis reform.

However, the fate of these measures in the Senate is uncertain.  On the one hand, the rider protecting medical compliant businesses has consistently passed in the Senate since 2014.  But protection of recreational businesses will likely be more controversial.  In opposing the Blumenauer Amendment in the House, Rep. Robert Aderholt (R-Alabama) argued that it would “prevent federal law enforcement from enforcing current law, from protecting public health and ensuring community safety” and said that claims of health benefits from marijuana are “anecdotal and generally outright fabrication.”  In addition, prior to the House vote, Greenwich Biosciences, the manufacturer of Epidiolex, an FDA-approved CBD medication, unsuccessfully attempted to convince Congress to vote against the Blumenauer Amendment, claiming that the measure is “overly broad and could be interpreted as impacting the ability of the DOJ to assist the FDA with any enforcement action that may need to be taken to ensure the public safety.”  Similar opposition can be expected in the Republican-controlled Senate.       

Author

Tom Firestone is Co-Chair of the firm's North American Government Enforcement practice and is a member of the Firm's Global Compliance & Investigations Steering Committee. He represents clients in matters involving anti-corruption and the US Foreign Corrupt Practices Act (FCPA), internal investigations and transactional due diligence. He is also a member of the firm's Cannabis Review Committee and has advised clients on compliance issues related to cannabis.

Author

Bruce Linskens is a Senior Analyst for International and Legislative Affairs in Baker McKenzie's Washington office. He assists clients with compliance matters extending into federal legislative, regulatory, and policy issues.