PSA: remember California, marijuana is still illegal under federal law

by William Restis

published January 4, 2018

Now that marijuana is legal for recreational use in California, individuals and businesses can forget that marijuana is still illegal under the Controlled Substances Act (CSA). And federal law trumps state law. Not only that, the Department of Justice may be enforcing federal law in California.

Now, I’m not a criminal attorney, and you aren’t my client, and this isn’t legal advice. BUT, there are certain things to remember that may help keep the federal government out of your business.

Rule Number 1: keep activities within California.

Federal law generally applies to activities involving “interstate commerce.” That means between different states. Imagine California’s physical boundaries as an invisible line you cannot cross. And when you do cross those lines, the feds are more likely to care.

How do people and businesses generally cross those lines? Airplanes, cars, and shipping. I’m sure there are others, but this blog is to help you understand general principles. Another thing in California is the ocean, and bays and inlets. Federal law applies there as well. Also (obviously) on military bases and federal parks. So it helps to ask the question: am I crossing state lines or onto federal property? If not, it becomes harder for the federal government to claim jurisdiction over your activities.

Rule Number 2: don’t use the “instrumentalities of interstate commerce.”

Generally speaking, federal law governs the “instrumentalities of interstate commerce.” This has some overlap with the previous category, but includes shipping, transportation, payments and communication. Think of the mail, the internet, email, text messages, phone calls, payment processors, and airports and airlines. If you’re using one of these in connection with your business or personal use of marijuana, the feds are more likely to care. I know that covers a lot of activities, and people use them every day without issue, but the possibility for legal trouble is still there. What does that mean in practice? Be smart. Don’t take your marijuana to the airport. Don’t ship it through the postal service. Avoid paying for marijuana using services like credit cards, Venmo, and Paypal. They don’t want your money, trust me. Email, texts and phone calls still technically bring the CSA into play, but unless you involve other prohibited interstate activities, these activities should be less of a priority for the feds (I said I’m not a criminal lawyer right?).

Stay safe out there!


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