Suppose The Army Gave A War On Marijuana And Nobody Came

Marijuana is a federally illegal controlled substance. So it should come as no surprise that the Armed Forces prohibit their active-duty members from engaging in certain acts pursuant to the Uniform Code of Military Justice (UCMJ), including using controlled substances like marijuana. What you may not know is that the Armed Forces frequently put their members and even outside businesses on notice of such prohibitions via letters.  

In Washington State, the Army recently sent warning letters out to state-licensed, recreational marijuana stores in Washington State. To date, 86 letters have been sent to recreational marijuana businesses, including to a large number of our retail cannabis clients. A few weeks ago, several of our retail clients informed us of having received cease and desist letters from the Department of the Army. These letters notified marijuana retailers that their products and services are not to be sold to active-duty military members:

This letter is to inform you that your establishment has been declared “Off-Limits” to members of the Armed Forces … Members of the Armed Forces are prohibited from entering your establishment as long as this order is in effect. This action is being taken because of the prohibited sales of substances similar to marijuana to Service Members.

This restriction will remain in effect indefinitely in accordance with established Armed Forces policy unless you agree to stop selling substances similar to marijuana to military personnel. You have thirty (30) days to present evidence to the [Armed Forces Disciplinary Control Board] that you agree to stop selling these substances to military personnel.

The letters summarily conclude by stating that removal from the “off-limits” list will be considered if the retailers can show that they’ve stopped selling marijuana to service members and that “correspondence appealing this action” can be submitted to the Army if the designated retailer so desires.

Our clients were not happy about receiving these letters; no business wants to be put on an “off-limits-or-else” list by any federal department. However, the bigger question was whether our clients actually needed to take any action here and whether the Army has any ability or authority to do anything to a state-licensed I-502 marijuana business.

The short answer to all of the foregoing is no.

There is nothing in either RCW 69.50 or WAC 314-55 obligating marijuana retailers to I.D. patrons to determine whether they are in the military. Washington state law also nowhere prohibits retailers from selling marijuana to active-duty service members. And even if a retailer opts to sell to someone in the Army, (or the Air Force, Coast Guard, Navy, or Marines) the Army has no jurisdiction to prosecute that retailer.

So why would the Army send these toothless letters at all?

Despite the curt tone of the letters, Joe Kubistek, a spokesman for Joint Base Lewis-McChord, stressed that these letters are a courtesy notification to the businesses and not a demand of any sort. Kubistek instead said that “the Armed Forces Disciplinary Control Board recognizes these businesses were established for the purpose of selling and distributing marijuana, within state guidelines, and had no intention of interfering with their business operations.” According to Kubistek, it is a standard practice of the military to put service members on notice of what they can and cannot do and that it’s on the service member to act accordingly (not the “off-limits” business). Consequently, retail marijuana shops have now joined the ranks of payday lending offices and certain nightclubs and strip clubs on the no-go list for military members.

This likely will not be the last time the military tries to stem the marijuana legalization tide in an effort to temper its impact on its service men and women. And though it may be disconcerting to receive one of these letters, just know that it’s military business as usual.