Marijuana Law Myths. Not Everything Changes With Legalization

As marijuana business attorneys, we constantly hear things about the laws related to marijuana — even from our own clients — that are both accepted wisdom and 100% wrong. In today’s post, we highlight three of the things people most commonly get wrong, all three of which were told to us at least once this past week at our Tribal Marijuana Conference.

1. If Marijuana is legal in my state, any limitation on access to it is a civil rights violation. The Huffington Post recently quoted Kirsten Velsaco, an Illinois medical marijuana patient advocate as being “sure” that Illinois’s practice of fingerprinting patient applicants “is illegal: a violation of civil rights and privacy.” It isn’t.

Marijuana MythsTo be perfectly clear, we agree that Illinois’s fingerprint requirement for patients is bad public policy as it unnecessarily and arbitrarily limits very sick patients’ access to medicine.  But just because something is really bad and really stupid and really unfair does not a civil rights violation make. Sorry.

A civil right is an “enforceable right or privilege, which if interfered with by another, gives rise to an action for injury.” To succeed in a civil rights action, a person with standing must claim that a “protected right” has been violated. Illinois law does not recognize anyone’s right to possess cannabis without first being fingerprinted. Illinois already requires purchasers of certain prescription and over the counter medications, like oxycodone and pseudoephedrine, to produce a photo ID at the point of purchase. Moreover, federal law does not recognize or confer any statutory or constitutional right to possess a Schedule I controlled substance, which marijuana still is.

Though claiming the fingerprint requirement is a “civil rights violation” grabs headlines, it gives patients incorrect impressions of their legal rights and obligations. For patient advocacy to be successful, credible, and effective, it is important to distinguish between what the law is and what the law ought to be. Disagreeing with legislative policy judgment is different from claiming that those judgments are “illegal.” Saying you are going to sue over something like this may actually cause people to hold back from taking the more effective course to try to get this law stricken: lobbying the politicians with the ability to change it.

2. Now that marijuana is legal in Washington, Oregon, and Alaska, it is legal to sell Washington-grown marijuana in all three states. We hear this one ALL the time, mostly from marijuana businesses that intend to do this, believing it to be legal. It isn’t and please, please do not do this, unless you want to go to federal prison. The same holds true for Washington D.C., where marijuana was just legalized. You cannot just take your “legal” marijuana there and start selling it.

Taking legal pot across ANY state borders by boat or by car or by air is a big deal as it amounts to unlawful interstate drug trafficking.

Before we talk about why this is the case, we first must note that possession of recreational marijuana for adults twenty-one and older will not be legal in Oregon until its new law goes into effect on July 1, 2015. Possession in Oregon until that time is illegal unless in accordance with Oregon’s current medical marijuana laws.

More importantly, taking marijuana from one marijuana legal state to another is a federal crime. Marijuana is still a Schedule I Controlled Substance. The U.S. Constitution gives the federal government the authority to regulate interstate commerce. This means that it can (and does) prosecute people for transporting marijuana across state lines, even if the transport is from one marijuana legal state jurisdiction to another.

We are not saying that you should expect FBI agents to be sitting at the borders waiting to arrest people for going from one state to another with marijuana, but this is to say that traveling from state to state with marijuana is not advised, particularly by boat or by airplane. More importantly, a business plan that assumes this is legal is a business plan that will set you up to fail, especially if you publicly reveal that your business does this.

This is also a good time to remind you that if you are going to drive from state to state, clear out your cars, your boats, your airplanes, your clothes and your luggage before going from a cannabis legal state to one that is not. State troopers in states like Nebraska, Kansas, and Idaho (and even Nevada where cannabis is legal for medical us but not recreational) love making easy money by arresting and fining people entering with marijuana from Colorado and Washington.

Transporting a Schedule I Controlled Substance, including marijuana, across any state line is a federal felony. This is the case even if your medical marijuana patient card is honored in the next state over, and even if you are moving between jurisdictions that have legalized recreational marijuana. Keep and consume your cannabis in the state where you purchased it, or you run the risk of federal criminal charges for transporting a controlled substance.

3. Now that recreational or medical marijuana is legal in my state my employer cannot fire me and my landlord cannot evict me for using it. This is generally wrong.

In most marijuana-legal states, employers can and will continue to perform drug tests. They are also free to insist on a drug-free work place. And landlords are also generally free to insist on their properties being smoke-free.

Court decisions in Washington, Oregon, and California, among other states, have upheld an employer’s right to refuse employment to, discipline, or terminate an employee for marijuana use, even if the employee is a valid medical marijuana patient under state law. The big problem here is that employers with zero-tolerance policies are not testing for impairment on the job; they are testing for marijuana use, even if that use occurred weeks prior.

What is often overlooked is that even residual amounts of marijuana in your system could be grounds for termination if your employer takes a hardline stance with its drug policy. It is critical to remember that if you consume marijuana in your home in accordance with state law, you can still be fired if your employer maintains a drug-free workplace. Take a look at your employer’s HR policies. If you plan to keep your job, marijuana consumption may not be an option.

As for landlords, if they have a clause in your lease that forbids any smoking on the premises, the laws in most states/cities allow them to enforce that. Check your lease and then decide how badly you wish to remain.

4. Marijuana retailers are not liable for bad product or for product that infringes on someone’s trademark, patent, or copyright. You would probably be shocked at how many cannabis retailers believe both of these things. They believe that only the company (typically the grower or the processor) that caused the problem with the cannabis or with the trademark is liable and that they are somehow immune from any liability for merely selling it. They are flat out wrong.

Though product liability laws in most states usually favor those not involved in manufacturing a defective product, there are many circumstances when retailers can be held liable for having sold a defective product, even if they did not know about any defect. Even a retailer that had no part in making the defective product it sold can be held liable for just having sold it.

In about half of the states, a retailer that sells a defective product can be subject to liability for harm caused to a consumer from a defect. What this means is that marijuana dispensaries can be held liable if someone falls ill from anything sold at retail, including edibles or tinctures.

Many state laws provide exceptions for retail sellers of products, but they do not absolve retailers of all liability. These laws typically provide that a product seller can be liable for damages caused to a consumer if the consumer’s harm was caused by the product seller’s own negligence, if the product seller made a warranty about the product and then breached that warranty, or if the product seller intentionally misrepresented the product it was selling.

Most states also have laws rendering retailers liable for defective products if it is unlikely that the injured consumer will be able to enforce a judgment against the product manufacturer. This means that if someone is injured by a defective medible and the manufacturer of that medible cannot pay damages to the injured consumer, the retailer will be required to pay those damages, even though it did nothing wrong. 

The same holds true for trademark violations. If you are selling product that violates someone else’s trademark or patent or copyright you can be liable for doing so.

If you are a marijuana retailer, you are wrong to assume that you cannot be held liable for the products that you sell. This means that you need to be careful in vetting the manufacturers from whom you buy and the products you sell. You also should have insurance to cover worst case scenarios.