Containing Cannabis Within State Lines: Who’s Responsible?

Marijuana Debate

I was on Al Jazeera America’s Inside Story last night to talk about the “Business of Pot.” My co-panelist was ex-DEA agent Michael Vigil. And though this TV interview didn’t amount to a Nancy Grace-type debate, Mr. Vigil and I disagreed about almost everything when it comes to marijuana and its legalization.

One unsurprising but particular point of contention was that cannabis in legalized states is leaking into states where marijuana prohibition remains strong. Mr. Vigil’s position was that the marijuana businesses themselves are responsible for this leakage. To the contrary, I argued that marijuana businesses are highly regulated and responsible, and that the states need to educate consumers on how to responsibly treat cannabis when it comes to this kind of diversion. Ray Suarez, the host of Inside Story, pointed out that much of this diversion is from consumers illegally transporting cannabis across state lines. Mr. Vigil vehemently denied this without any real proof in support of his contentions. But this conversation ultimately begs the question: what is being done to ensure state-legal cannabis stays within state borders? And where does the buck stop regarding customers who engage in interstate drug trafficking? Most importantly, do the Feds care about this kind of activity?

The 2013 U.S. Department of Justice’s memo focuses on the activities of states and cannabis businesses. That memo prioritizes the federal government’s enforcement goals for cannabis and diversion of product is on that list. Clearly, when states implement traceability and product tracking requirements, it is in an effort to satisfy that federal enforcement priority. And states and marijuana businesses take that responsibility seriously, as evidenced by the volumes of state regulation dedicated to traceability, the massive investment of money and manpower that goes into tracking software to ensure business tracking capabilities, and the fact that states work so hard to limit the marijuana industry only to responsible businesspeople. One would be hard-pressed to find a legal marijuana business in either Washington or Colorado that cannot tell you from exactly where it got its cannabis and to exactly whom it went at its point of sale.

Interestingly, the DOJ’s 2013 memo does not mention any enforcement priorities regarding consumer conduct. Moreover, the DOJ has pretty much said it will not go after legitimate patients or consumers in legal marijuana states. Really, only state and local law enforcement are keeping their eye on consumers and their cannabis activity in legal states, and most of those states have made cannabis consumer enforcement one of their lowest enforcement priorities.

The issue of containing cannabis within state lines forms the basis for the lawsuit brought by Nebraska and Oklahoma against Colorado in an attempt to shutter Colorado’s adult use cannabis program. That lawsuit is pending before the U.S. Supreme Court and it likely will definitively end the debate between Mr. Vigil and me. If, as expected, Colorado prevails, we will have a Supreme Court ruling essentially saying that the legalized states (or at least Colorado) are making sufficient efforts to prevent leakage into the non-legalized states and that the leakage we are seeing is not an overwhelming priority for the federal government.