Marijuana in Colorado, Washington, DC and beyond: A legal overview

September 17, 2015

By: John M. Tanner

Inside Counsel

With new ballot initiatives surrounding marijuana appearing every year, the legal issues surrounding marijuana will become more and more relevant to our nation’s employers.

The federal Controlled Substances Act (“CSA”) was enacted in 1970 and governs drugs and their use by placing them into five schedules.  Marijuana is on Schedule I, and therefore outright banned, along with drugs like LSD and heroin.

Beginning with California in 1996, 23 states and the District of Columbia—including Colorado in 2000—have enacted some form of medical marijuana legalization/decriminalization.  In 2012, Colorado voters passed Amendment 64, legalizing recreational marijuana, and, joined by Washington, became the first states in the Union to do so.  Most recently, Oregon and Alaska legalized recreational marijuana, as did Washington, D.C.

To implement Colorado’s recreational marijuana amendment, the Colorado Legislature tasked the Department of Revenue and the Department of Public Health and Environment with regulating marijuana cultivation, sale and taxation.  Through mid-December 2014, Colorado had collected approximately $30 million in tax revenue on the sale of marijuana.  From January 1, 2015 to mid-May, Colorado had collected approximately $88 million in tax revenue for 2015. The tax rate for recreational marijuana is approximately 28% (plus any local tax), while the tax rate for medical marijuana is 2.9% (plus any local tax).

Coloradoans 21 or older can purchase up to 1 ounce of marijuana at a time, and can grow up to 6 flowering plants at a time.  They may consume marijuana in private, but the public consumption of marijuana remains illegal.  Additionally, driving under the influence of marijuana remains illegal.

With respect to the federal government’s enforcement of the CSA, the Obama Administration has issued several policy statements (popularly termed the “Cole Memos”) indicating the Executive Branch will focus on eight law enforcement and prosecutorial priorities (“the Great Eight”), as opposed to vigorously enforcing federal marijuana laws.  These policy objectives include:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing growing marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

On December 11, 2014, the Administration indicated in yet another policy statement that it will no longer prosecute federal marijuana laws on Tribal lands, even where the Tribal lands lie in states that have not legalized marijuana.  Additionally, on February 14, 2014, the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a similar policy statement regarding money laundering laws, all in an effort to allow banks to service the growing marijuana industry.  As mere policy statements, however, the Administration’s pronouncements of prosecutorial and investigative priorities can carry no legal force or effect, and could be reversed by future administrations.

In order to allow banking for the marijuana industry, Colorado recently took steps to create the world’s first credit union for the industry, called the “Fourth Corner Credit Union.”  Although it has been issued a state charter, it awaits insurance from the National Credit Union Administration, a process which can take two years.  In the interim, it will be able to operate pending the insurance decision.

With the Colorado Supreme Court’s addition of Comment 14 to Colorado Rule of Professional Conduct 1.2 in March of 2014, Colorado attorneys are now able to counsel and represent the marijuana industry without fear of running afoul of the state ethics rules.  The U.S. District Court for the District of Colorado, however, opted out of Comment 14, and, therefore, attorneys appearing in the federal court are barred from advising clients in the industry with regard to future conduct.  As an example of the schism between state and federal courts, the U.S. Bankruptcy Court for Colorado has on at least two occasions dismissed bankruptcy petitions filed by marijuana industry participants, based on their violation of federal marijuana laws. 

Colorado employers and employees recently received more guidance on marijuana in the workplace when, on June 15, 2015, the Colorado Supreme Court upheld the termination of an employee for testing positive for marijuana.  The court held that despite the facts that the employee possessed a Colorado medical marijuana card, and used marijuana after work hours, the activity was not “lawful” under the CSA, and, therefore, not lawful conduct under Colorado’s statute which protects employees from termination for lawful conduct they engage in during non-work hours.

With regard to Washington, residents 21 and older may possess up to 1 ounce of marijuana.  Public consumption is banned, as in Colorado.  Like in Colorado, employees are not provided protection from termination for its consumption.  The state taxes retail marijuana sales at thirty-seven percent (37%).

Washington, D.C. is one of the most recent jurisdiction to have legalized the use of recreational marijuana, and, as of February 26, 2015, residents can possess up to 2 ounces of marijuana, and grow 6 plants, only 3 of which can be mature at any given time.  Sales of the drug are illegal, but transfers of an ounce or less are legal.  Approximately twenty percent of Washington D.C. sits on federal lands, and, therefore, possession of marijuana in those areas remains illegal.  Washington D.C.’s move is especially thorny as Congress has oversight over the District.  

As recently as July 1, 2015, recreational use in Oregon became legal under its laws.

Every year new ballot initiatives appear in more and more states, and, therefore, the legal issues surrounding marijuana will become more and more relevant to our nation’s employers, especially those tasked with managing their legal risks and compliance.  It is the company’s in-house counsel, after all, who will be charged with understanding the interplay between federal and state law on marijuana, and assisting the company in safely navigating the ever-changing tides of marijuana law. 

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

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