THE BLOG

Numerous Legal Issues Surround Medical Marijuana

02/05/2015 04:41 pm ET | Updated Jun 08, 2015

The U.S. legal system is slowly addressing the legal implications of nearly half of the states having enacted medical marijuana legislation. The wording of state legislation is not uniform and consequently generalizations are difficult. Medical marijuana will continue to be a significant area of developing law. This comment briefly notes in general terms 20 unfolding legal issues among many. It does not take a position on the desirability or undesirability of medical marijuana or address medical issues but simply provides a very general overview of the current legal environment. Always consult an experienced medical professional and legal counsel when addressing medical marijuana questions.

Prescribing Issues:

1. Precisely what medical professionals may prescribe medical marijuana and what standards of care must be met? This question has implications for medical licensing and professional disciplinary procedures as well as medical malpractice litigation.

Distribution Issues:

2. Should medical marijuana be distributed by commercial businesses or state-operated entities? Commercial businesses are currently overwhelmingly favored.

3. What state and local licensing and ordinance requirements must be met to operate a medical marijuana dispensary or create baked goods, candy, and other consumables containing medical marijuana? These are being created.

4. May federal bankruptcy protection be denied medical marijuana businesses? Yes, since the business is considered to be operated in violation of federal law.

5. May federally regulated banks lawfully accept the proceeds of medical marijuana sales? Banks are fearful of prosecution and want definitive legislation that provides a safe harbor. There are attempts to form state financial institutions to provide financial services to the medical marijuana industry.

Conditions Restricting Usage:

6. May criminal probation prohibit medical marijuana usage? Generally courts say yes as judges have broad discretion in imposing conditions of probation.

7. May usage around children or reckless storage that allows children access to medical marijuana be punished? Courts overwhelmingly say yes under a child endangerment standard.

8. May minor children be removed from a home in which medical marijuana is used? Courts frequently say yes in the best interest of the child.

9. May gun purchases or other permits be denied to medical marijuana users? The Federal Firearms Transaction Record Form 4473 asks questions concerning "unlawful" marijuana and other drugs usage. Courts often uphold permit requirements. Here there is potentially a federal-state law conflict.

10. What level of marijuana chemical (THC) blood concentration constitutes unlawful driving under the influence? These standards are being created.

11. May federal Department of Housing and Urban Development regulations prohibit medical marijuana use in federally supported public housing? Currently this is true.

12. May private sector tenants in medical marijuana states be prohibited in their lease agreement from using any marijuana? This is an open question.

Drug Courts:

13. The impact of medical marijuana prescriptions in drug courts that frequently prefer abstinence from all drug usage is to be determined.

Employment Issues:

14. May employers conduct marijuana screening as part of a zero tolerance drug policy and enforce anti-marijuana policies with termination? While often the answer is yes, there is no uniform answer. A difficult question involves off-work and off-employment-site medical marijuana usage that produces a positive drug test result even when the individual is not intoxicated. State legislation varies in having reasonable accommodation and disability language. The Colorado Supreme Court is considering this issue (Coats v. Dish Network). However, a Colorado decision will only be binding in Colorado.

15. Is an employee who is prescribed medical marijuana protected by state or federal disability legislation? Disability legislation will typically not protect an employee who comes to work intoxicated. However, a disabled employee is typically entitled to reasonable accommodation unless it produces an undue hardship for the employer. Precisely how state legislation defines "disability" is significant. Again, off-work usage of prescribed medical marijuana is a difficult issue.

16. Federal contractors must comply with the Drug Free Workplace Act. Federal law considers marijuana an illegal drug and mandates a zero-tolerance workplace policy. Also, Department of Transportation regulations have similar requirements. Consequently some states exempt federally regulated employers from accommodation requirements. However, the precise interplay between state and federal law is unclear.

17. Does state legislation prohibiting employers from disciplining employees who engage in lawful activities or use lawful products also apply to medical marijuana? These statutes were typically enacted with tobacco use in mind. Their application to medical marijuana is uncertain.

Interstate Commerce and Federalism Issues:

18. May medical marijuana products be distributed in interstate commerce? Medical marijuana may not be distributed in a state that outlaws it. Interstate transportation between states where medical marijuana is lawful is an open question.

19. May one state successfully challenge the marijuana laws of another state? In December 2014 Nebraska and Oklahoma sued Colorado in the U.S. Supreme Court asserting that Colorado was in violation of the federal Controlled Substance Act and that law enforcement related expenses in their states were increased by Colorado's actions. Many commentators doubt that this litigation will succeed because of "standing" (a right to sue) but the question is open.

The Intersection of State and Federal Law:

20. On December 16, 2014, President Obama signed a federal spending bill containing the following language :

"None of the funds made available in this act to the Department of Justice may be used ... to prevent ... states ... from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana."

The interaction of this provision with the classification of marijuana as a Schedule I substance under the Controlled Substances Act is uncertain.