I have received a number of questions relating to the legal status of marijuana in the US and Canada, the primary question being has it really been legalized? So below is a brief discussion – while the industry seems to still be in its infancy, more has happened in the industry in the United States from a regulatory perspective, so there is a greater focus on the US rules. Canada I would expect would take the US regime into consideration in implementing its own rules relating to MJ. I point out that this is a very general discussion for your reference and should be used only as a starting point. Please contact me directly for more detailed information at firstname.lastname@example.org.
In most US states, the possession and use of marijuana (MJ) is illegal. However, the legal landscape around MJ is changing. Four states have passed legislation legalizing the use, possession, sale, cultivation and transportation of marijuana (MJ) for recreational purposes, in particular Washington State, Colorado, Oregon and Alaska. The people of Washington D.C. have approved the legalization of MJ for recreational use, however, whether legislation will be implemented in this regard remains to be seen. Several other states have passed legislation legalizing the use of MJ for medicinal purposes and decriminalizing the possession of smaller amounts MJ, for example California, Maine, Maryland and some others; while certain other states have passed legislation legalizing the use of MJ for medicinal purposes only, for example Arizona, Delaware, Hawaii and others. Surprisingly, there is no formal regulation around the use of MJ for medicinal purposes in Washington State currently, although this is expected to change soon.
MJ laws vary significantly from state to state. In states where MJ has been legalized, there generally are robust regulatory schemes in place, requiring licenses to grow, process and sell MJ and MJ based products. These MJ businesses are continually monitored for compliance with applicable rules and are heavily taxed relative to other businesses. In addition, MJ businesses may be disallowed certain business deductions under state tax laws available to other businesses generally, as well as under the federal Income Tax Code. This makes it relatively costly to run a MJ business.
At the federal level, the use, possession, sale, cultivation and transportation of MJ is illegal. MJ is a Schedule I drug under the federal Controlled Substances Act. However, the federal government has issued guidance indicating the circumstances in which it likely would not prosecute people for running an MJ business, effectively in those states that have robust regulatory schemes in place around MJ (see the Cole memo put out by US Deputy Attorney General James Cole in February 2014). Nonetheless, there are no guarantees that the DEA will not shutdown operations in states that have implemented robust regulatory schemes as contemplated in the Cole memo, as seen in Washington State recently.
In California, where possession of smaller amounts of MJ has been decriminalized, the DEA has made an effort to shut down MJ operations. California does not currently have a regulatory scheme in place around MJ to the dissatisfaction of the federal government. There is currently a case pending before a California court challenging the listing of MJ in Schedule I of the Controlled Substances Act. However, it seems that to remove it completely as a Schedule I drug would severely limit the federal government’s power to prosecute MJ crimes generally. It will be interesting to see how the federal regulatory scheme develops. Currently, however, there are no guarantees against federal enforcement or prosecution relating to MJ.
Industrial hemp is also considered illegal federally, with the exception of growing it for research purposes but only in certain states that have allowed institutions to conduct this type of research. The reason being that industrial hemp still falls within the definition of “marijuana” in the Controlled Substances Act. It is also considered illegal currently in certain states, including Washington State (where MJ has been legalized but industrial hemp falls outside the definition of “marijuana”), although a number of other states have passed legislation allowing it. Nonetheless, people are hopeful that this will change soon and that the growing of industrial hemp will be freely allowed in the United States.
CBD and related cannabinoids are also illegal federally despite numerous claims that CBD is legal. CBD and other cannabinoids fall within the definition of “marijuana” in the Controlled Substances Act as a “resin” of the cannabis sativa plant. However, there is a bill before Congress to exclude CBD and therapeutic hemp from the definition of MJ in the Controlled Substances Act, which would effectively legalize it. We are keen for this given the highly therapeutic value of CBD in particular.
So it seems that the regulation of the MJ industry is evolving as the industry itself evolves from its infancy. As more states pass legislation moving toward the legalization of MJ, it is expected the government federally will do the same. California currently does not have a formal regulatory scheme in place relating to MJ, but this is expected to change in 2016 as the federal election gains momentum. In fact a number of states are expected to pass legislation legalizing MJ that year. Currently, however, there are no guarantees against federal prosecution.
Marijuana is illegal in Canada and every Province of Canada and one may use, possess, sell, cultivate or transport marijuana only with permission from the federal government, in particular a license from Health Canada is required. You can’t import it or export it, without a license from Health Canada. It’s illegal in every Province of Canada, despite the fact that the police may not fully enforce the rules relating to MJ.
MJ is regulated in Canada under the Marijuana for Medical Purposes Regulations of the federal Controlled Drugs and Substances Act. It is considered a Schedule 2 drug and the possession of smaller amounts of MJ (less than 30 g) without a license is a lesser offense that generally will not result in jail time. However, one can obtain it for medicinal purposes with a prescription from a licensed healthcare practitioner.
There has been discussion about the federal government legalizing MJ for recreational use, but nothing official has been released from the government so far. With an election coming in 2015, the legalization of MJ is expected to be a significant issue. Justin Trudeau and the Liberal Party have indicated a willingness to legalize MJ if elected. Legalizing MJ would legalize the use of CBD which has been shown to be highly therapeutic for people suffering from ailments such as arthritis (which has been an issue in my family). So long live Justin Trudeau!