The Catholic University of America

NACUA Notes (National Association of College and University Attorneys)

April 15, 2014 | Vol. 12 No. 3

 

TOPIC:

UPDATE:  MARIJUANA ON CAMPUS – YES, IT IS STILL ILLEGAL
(But HEMP may be okay)[1]

Author:

Linda Schutjer is Senior Legal Counsel at the Office of General Counsel at Colorado State University.  The author would like to thank Pam Merrell, formerly Associate Legal Counsel at Montana State University, for her assistance in co-authoring the initial version of this Note.  

Introduction:

A number of states have legalized the cultivation and use of marijuana for medical purposes, and many others are actively considering such measures.[2] Ballot measures recently approved by voters in Colorado and Washington State allow recreational use of marijuana. A number of states have also adopted laws with respect to growth of "industrial hemp."[3] The Agricultural Act of 2014 (the "Act"), signed into law on February 7, 2014, also contains language allowing the cultivation of "industrial hemp" for research purposes by universities and state departments of agriculture.[4]

Notwithstanding this trend towards legalization at the state level, growing, possessing and using marijuana remain crimes under federal law. As a result, college and university officials are often left questioning how these state marijuana laws will affect campus life, research, and operations. Additionally, although the Act allows for cultivation by universities of industrial hemp for research purposes, it fails to provide for the actual use and possession of portions of the Cannabis sativa L. plant that fall within the definition of marijuana under federal law. This NACUANOTE explores these issues, specifically with respect to possession and use of marijuana by community members, as well as issues relating to institutional research uses of marijuana and hemp.

Discussion

Federal Law vs. Federal Practice

In Law:

At the federal level, the Controlled Substances Act ("CSA") criminalizes the growth and use of marijuana, with a limited exception for Food and Drug Administration-approved research[5] and Tetrahydrocannabinols (THC) are classified as “Schedule 1” under the CSA, which is the most restrictive category.[6] Marijuana (or as spelled in the CSA, Marihuana) is defined as follows: 

The term ''marihuana'' means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.[7]

In Gonzales v. Raich, 545 U.S. 1 (2005), the U.S. Supreme Court held that the CSA – as an exercise of Congress’s plenary commerce power – prevailed over California’s medical marijuana law based on the Supremacy Clause of the U.S. Constitution.  As a result, it is well settled that federal law enforcement agencies can prosecute users and growers of marijuana, despite state law “legalizing” such use or production.[8]

Efforts to have marijuana reclassified to a lesser schedule have also failed.  In Americans for Safe Access v. DEA,[9] the DC Circuit Court of Appeals rejected the argument that the DEA’s classification of marijuana as a Schedule 1 drug was arbitrary and capricious.  The decision turned on the DEA’s determination that there had yet to be “adequate and well-controlled studies” showing a “currently accepted medical use” for marijuana.[10]

With regard to hemp, the Ninth Circuit in Hemp Industries Ass’n v. Drug Enforcement Administration[11] found that the DEA lacked authority to issue rules that would have prohibited importation of natural hemp products, such as sterilized hemp seeds and oil and cake derived from the seed and oil, and the manufacture in the United States of food and cosmetic items from these products, because the excluded parts of the plant contained effectively no THC:

The flowering tops, leaves, and seeds of the hemp plant contain a dangerous drug known as marihuana.... The term "marihuana" is defined so as to bring within its scope all parts of the plant having the harmful drug ingredient, but so as to exclude the parts of the plant in which the drug is not present. The testimony before the committee showed definitely that neither the mature stalk of the hemp plant nor the fiber produced therefrom contains any drug, narcotic, or harmful property whatsoever and because of that fact the fiber and mature stalk have been exempted from the operation of the law.[12]

Noting that Congress was aware that the excluded portions of the plant “contained small amounts of the active ingredient in marijuana, but that the active ingredients were not present in sufficient proportion to be harmful,” the court determined that the definition of “marijuana” did not include the parts of the plant which the court characterized as “non-psychoactive hemp.”[13] The court did not define what level of “active ingredient” non-psychoactive hemp may contain, although it noted that a “true zero level” is not achievable.[14] The DEA did not appeal this decision.  As a result, some parts of the Cannabis sativa L. plant are subject to the CSA limitation on possession and importation (i.e. flowering tops, non-sterile seeds and leaves), and some parts are not (e.g., stalks, fiber, oils – provided they only contain a small amount of THC).[15]

Thereafter, plaintiffs in a number of cases involving cultivation of hemp without a DEA license argued that Hemp II had effectively created a differentiation between "industrial hemp," which could be characterized as "non-psychoactive hemp," and marijuana. Courts rejected these arguments, finding that "growing Cannabis sativa L., from which hemp is ultimately derived, but from which 'psychoactive' marijuana is also derived" is regulated by the CSA "because it is marijuana at some point in the farming operation, containing natural THC."[16] Thus, cultivation of so-called industrial hemp was regulated in the same way as marijuana and required a permit from the DEA.[17] These permits have rarely been issued and include highly burdensome security measures required for crop production.[18]

The Act was intended to create a research exception to the CSA regulation of "industrial hemp." As will be discussed later in this Note, it is unclear that this was accomplished.

In Practice:

During the George W. Bush Administration, federal law enforcement actively prosecuted cases against medical marijuana users in accordance with Gonzales. Despite suggestions in a 2009 memorandum to United States Attorneys that limited federal resources should not be spent prosecuting those whose actions are in clear and unambiguous compliance with state medical marijuana laws,[19] the Obama Administration has continued and expanded on the Bush Administration's enforcement practices.[20] In more recent guidance from the U.S. Department of Justice in 2011, the Department suggested that given "an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes," "large-scale, privately-operated industrial marijuana cultivation centers" would be the subject of federal enforcement action and prosecution "even where those activities purport to comply with state law."[21]

The U.S. Department of Justice issued additional guidance on August 29, 2013 that identified a number of enforcement priorities to guide enforcement of the CSA.[22]  The Justice Department called upon states such as Colorado and Washington that treat marijuana as legal under state laws to "implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests."[23]  However, even where such systems are in place, the Justice Department made clear that it will continue to pursue federal enforcement of the CSA.  Thus, federal law enforcement officials remain fully authorized to enforce the CSA’s prohibitions against the use and growth of marijuana, and indeed have continued to do so.[24]

The Department has also seemingly turned its focus to other related enforcement options under federal law.  Letters from the Department to officials in states that have adopted legalized marijuana laws contain references to laws that make it a crime to lease, rent or maintain a place for the purpose of manufacturing, distributing or using a controlled substance;[25] to conspire to commit that crime or any other crime;[26] and to engage in financial transactions to promote illegal activities including drug trafficking and disguising the source of proceeds of illegal activities.[27] In California, federal prosecutors announced in a news conference that they would "go after landlords who rent their buildings to dispensaries of medical marijuana, and even after newspapers, radio and television stations who accept advertising from sellers of the weed."[28] Additionally, U.S. Attorneys in a number of states with medical marijuana laws have suggested that state employees who implement state medical marijuana laws could be subject to criminal prosecution under the CSA.[29]  Banks are subject to anti-money laundering rules and similar regulations.  As a result, they are unwilling to accept marijuana businesses as clients until such time as banking regulations are changed.[30]  Banks remain wary even after the Department of the Treasury Financial Crimes Enforcement Network[31] and DOJ[32] issued guidance suggesting that enforcement of these banking regulations might be limited.[33]

Criminal prosecution is not the only way the federal government can take punitive action against individuals who use marijuana in compliance with state law, with potentially significant effects on campus. Illegal drug use is a bar to the acquisition or renewal of a federal security clearance.[34] While a physician cannot be sanctioned for recommending medical use of marijuana to a patient, a physician's DEA license could be revoked if the physician went beyond simple recommendation and actually provided marijuana to a patient or facilitated acquisition.[35] Similarly, an attorney who knowingly facilitates distribution of marijuana in violation of federal law could face federal criminal prosecution.[36] An individual holding a DEA license for research purposes can have that license revoked for failure to comply with federal laws relating to controlled substances.[37] Students also face risks to their student financial aid for marijuana use, as will be discussed below.

Marijuana on Campus

Employee Use of Medical Marijuana in the Workplace[38]

Many of the state laws that have legalized medical marijuana expressly provide that employers do not have to accommodate an employee’s use of medical marijuana.[39]  But even where the state law is not as explicit, federal law renders such use illegal in the campus workplace.

In addition to being a federal offense under the CSA, the use of marijuana in the workplace is restricted by federal laws such as the Drug-Free Workplace Act of 1988 ("DFWA").[40]  DFWA requires that institutions receiving federal contracts in excess of $100,000, or receiving any federal grant, establish a policy prohibiting the manufacture, use and distribution of controlled substances in the workplace. An institution's failure to demonstrate its ongoing good-faith efforts to maintain a drug-free workplace can disqualify that institution from obtaining future government funding.

The Occupational Safety and Health Act ("OSHA") also imposes a general responsibility on employers to maintain a safe workplace.[41] Permitting employees who are under the influence of marijuana to operate machinery or work with potentially hazardous materials or substances could create elevated risks in the workplace and violate OSHA requirements.

Employee Use of Medical Marijuana while Off-Duty

Although marijuana use remains a federal crime, state-level acceptance of marijuana as a medical treatment has led some employees to claim that they cannot be fired for their off-duty marijuana use, or that such use should be protected as a reasonable accommodation under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, or similar state laws.

The federal law claims have been easily rejected, as both the ADA and the Rehabilitation Act explicitly exclude illegal drug use from their protections.[42]  State law claims have required deeper analysis, but have thus far been consistently dismissed.  In rejecting one such claim, the California Supreme Court held that California’s Fair Employment and Housing Act “does not require employers to accommodate the use of illegal drugs,” and noted that “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law . . . even for medical users.”[43] The Washington Court of Appeals reviewed a similar claim and upheld the termination of an employee for his off-duty use of medical marijuana, finding that “the voters did not intend to impose any duty on private employers to accommodate employee use of medical marijuana.”[44] The Oregon Supreme Court upheld the firing of another medical marijuana user, noting that "to the extent that [Oregon's Medical Marijuana Act] affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it 'without effect.'"[45]

Some states, such as Colorado, have “Lawful Off-Duty Activities” statutes, which prohibit termination of an employee for engaging in lawful activity off the premises of the employer during non-working hours, subject to certain limited exceptions.[46] Colorado courts that have considered whether use of marijuana in compliance with Colorado's medical marijuana laws is a "lawful activity" for purposes of this statute have found that it is not. These courts have found that the "legalization" of medical marijuana simply creates a defense to criminal prosecution.[47]

Interestingly, Amendment 64 recently approved by Colorado voters and Initiative 502 approved by the voters of Washington State specifically provide that use, possession, and cultivation of marijuana in compliance with the terms of the amendment or act is legal.[48] Language in the earlier medical marijuana legislation simply provided that it was an affirmative defense to a violation of the states’ criminal laws.  However, Colorado’s Amendment 64 explicitly provides that employers are not required to permit or accommodate an employee’s use, consumption, or possession of marijuana, nor does it affect the employer’s ability to have policies restricting the use of marijuana by employees.[49]

Other states have taken steps to try to protect employees from termination for “off duty” use of marijuana where such use is in accordance with state law.  For example, Arizona’s Medical Marijuana Act included a provision explicitly prohibiting discrimination by an employer against an individual based upon either (1) the employee’s status as a medical marijuana card holder, or (2) the employee’s positive drug test for marijuana.[50] Nonetheless, this provision does not apply where a failure to penalize an employee for their status as a medical marijuana card holder or a positive drug test for marijuana would cause an employer to lose a monetary or licensing-related benefit under federal laws or regulations.[51] The provision also does not limit an employer's ability to take disciplinary action against an employee who uses marijuana in the workplace or works while under the influence of marijuana.[52] For colleges and universities subject to the DFWA, a carve-out like this avoids a situation where acting in compliance with federal law puts the institution out of compliance with state law. Given the various state laws, institutions in states with medical or recreational marijuana laws should become familiar with the specific provisions of their state laws.

Student Use of Medical Marijuana

Much of the discussion above with respect to employees applies to student use of medical marijuana as well.  As marijuana continues to be illegal under federal law, institutions cannot accommodate users of medical marijuana in their residence halls, on campus or otherwise.  The primary challenge will likely continue to be battling student perception that medical marijuana, or even recreational use, is completely legal.

Schools will need to make clear statements about their position on marijuana on campus. Students need to understand that even in states where marijuana can be used for medical or recreational purposes under state law, such use still violates federal law and may result in federal prosecution. Moreover, students should be aware that marijuana use may adversely affect future employment, as many employers require drug testing.[53] A conviction can also limit their ability to obtain federal financial aid.[54]

Research Exception

As noted above, there is a limited research exception to the CSA’s prohibition against the growth and use of marijuana.  This exception permits researchers to grow and study Schedule I drugs such as marijuana, provided they register with, and are approved by, the Drug Enforcement Agency (“DEA”).  As of December 2010, there were 111 researchers registered with the DEA to perform studies with marijuana and its derivatives.  Fourteen of those researchers are approved to conduct research with smoked marijuana on human subjects.[55]

The United States is also a party to the Single Convention on Narcotic Drugs, an international drug control treaty, pursuant to which signatories must establish a national agency to control the cultivation and distribution of marijuana if they wish to cultivate it for research purposes.[56] In the United States, all marijuana to be used for research must be legally obtained through the Department of Health and Human Services' National Institute on Drug Abuse ("NIDA").[57] NIDA bids out the contract to produce research marijuana every five years, and since 1968, has awarded the contract to the University of Mississippi's National Center for Natural Products Research (the "National Center").[58] Thus, all research marijuana must be obtained through the National Center, and the National Center, in turn, ships marijuana to researchers only after NIDA approval.[59]

Hemp vs. Marijuana

Hemp fiber has a long history of industrial use and is widely cultivated outside the United States.  However, hemp and marijuana are both genetic variants of the same Cannabis sativa L. species.  Although hemp contains only trace amounts of the main hallucinogen found in marijuana, the CSA nonetheless defines the entire species as a Schedule I controlled substance. A number of states have passed laws to permit the production of industrial hemp, and though the economic viability of a U.S.-based industrial hemp industry has been questioned by some,[60] there appears to be growing support for this "small-scale, but profitable, niche market."[61]

At the federal level, there have been past legislative efforts by members of Congress to amend the Controlled Substances Act to differentiate between hemp and marijuana, most recently the Industrial Hemp Farming Act of 2013 ("Act") introduced by Rep. Thomas Massie in February of last year. These efforts have been unsuccessful. The Act takes a different approach leaving the definition of marijuana unchanged, but attempting to create a limited research exception for "industrial hemp."

The language of the Act, crafted by Reps. Massie, Jered Polis and Earl Blumenauer, creates a limited research exception for universities and state departments of agriculture to cultivate industrial hemp for purposes of research conducted under (1) an agricultural pilot program, or (2) other agricultural or academic research. "Industrial Hemp" is defined as "the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis."[62]

Agricultural Pilot Program is defined, but "other agricultural or academic research" is not. An "Agricultural Pilot Program" studies the growth, cultivation or marketing of industrial hemp that is conducted in a state that allows such growth or cultivation. At a university, the pilot study must be conducted in a manner that: (1) ensures only the institution grows or cultivates the industrial hemp; (2) has a state certified site for growing or cultivation, which site is also registered with the state; and (3) allows the state's department of agriculture to promulgate regulations for carrying out such pilot program. It appears, however, if hemp is grown or cultivated as part of "agricultural or academic research," as compared to an Agricultural Pilot Program, no state certifications, registrations or regulations are required.

A more serious problem with the Act is that while it allows the growth and cultivation of industrial hemp for certain research purposes, nowhere does it specifically provide that the possession of hemp to actually conduct the research (e.g., in the lab) is also allowed without a DEA license. While it certainly seems to be the intent behind the legislation that once the hemp is grown, it can be used in research without a DEA license, the Act does not specifically say that and so creates an area of uncertainty.[63]

Another issue that could limit research options is that the Act does not specifically allow importation or transfer of viable hemp seeds.[64] It would seem that the Act intended to permit, for example, a research university to share its viable hemp seeds with another research university or accept viable seeds from an in-state farmer. However, the Act's language does not specifically provide for this.[65]

In conclusion, while the Act clearly allows cultivation and growth of industrial hemp for research, it fails to actually explicitly permit research and associated activities. It seems clear that the drafters intended to permit such research; however, without language specifically allowing for these activities, there is arguably some risk that doing so is a violation of the CSA.

Conclusion:

Despite the trend towards decriminalization of medical, and now recreational, marijuana at the state level, the possession, use, and production of marijuana remains illegal at the federal level – even for medical use.  College and university policies should therefore reaffirm that use and possession of marijuana are prohibited on campus unless proper authorization has been obtained from the DEA for approved research purposes.  While the federal government has recently taken steps to permit research on “industrial hemp,” the language of the legislation contains ambiguities.  Although the risk of prosecution seems fairly small, unless and until this language is clarified by amendment or regulation, universities will have to determine whether their risk tolerance permits allowing industrial hemp research on campus. 

ADDITIONAL RESOURCES:

Government Resources:

  1. Memorandum for Selected United States Attorneys from David W. Ogden, Deputy Attorney General (Oct. 19, 2009), http://blogs.usdoj.gov/blog/archives/192.
  2. Memorandum for Selected U.S. Atty's re Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use from James M. Cole, Deputy Attorney General (June 29, 2011), http://www.azdhs.gov/medicalmarijuana/documents/resources/guidance_regarding_medical_marijuana.pdf.
  3. Memorandum for all United States Attorneys, Guidance Regarding Marijuana Enforcement from James M. Cole, Deputy Attorney General (August 29, 2013), http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf
  4. Provision of Marijuana and Other Compounds For Scientific Research - Recommendations of The National Institute on Drug Abuse National Advisory Council, http://www.drugabuse.gov/about/organization/nacda/marijuanastatement.html.
  5. U.S. Department of Health and Human Services Drug-Free Workplace Information page, http://www.workplace.samhsa.gov.
  6. Drug Enforcement Administration Homepage, http://www.justice.gov/dea/index.htm.
  7. The Agricultural Act of 2014, http://beta.congress.gov/113/bills/hr2642/BILLS-113hr2642enr.pdf

Select Organizations Promoting Legalization:

  1. Medical Marijuana – ProCon.org, http://medicalmarijuana.procon.org/.
  2. Americans for Safe Access, http://www.safeaccessnow.org/.

Select Organizations Opposing Legalization:

  1. Citizens Against Legalizing Marijuana -- http://www.calmca.org/
  2. Above the Influence -- http://www.abovetheinfluence.com/facts/drugsmarijuana

Articles of Interest:

  1. End the Ban on Psychoactive Drug Research, by the Editors, Scientific America, February 1, 2014.
    http://www.scientificamerican.com/article/end-the-ban-on-psychoactive-drug-research/

 

  1. The Forensic Identification of Marijuana: Suspicion, Moral Danger, and the Creation of Non-Psychoactive THC, Aaron Roussell, 103 ALB. L.J. Sci. & Tech Vol. 22.1 (4/16/2012)
    http://www.albanylawjournal.org/Documents/Articles/22.1.103-Roussell.pdf

 

  1. The Future of Marijuana in the United States, Steven B. Duke, April 19, 2013, Oregon Law Review, Vol. 91, 2013,Yale Law School, Public Law Working Paper No. 299
    http://law.uoregon.edu/org/olr/volumes/91/2/documents/Duke.pdf

 

  1. Industrial Hemp: How The Classification Of Industrial Hemp As Marijuana Under The Controlled Substances Act Has Caused The Dream Of Growing Industrial Hemp In North Dakota To Go Up In Smoke, Thomas A. Duppong, University of North Dakota Law Review, Volume 85, Number 2 (2009)
    http://web.law.und.edu/lawreview/issues/web_assets/pdf/85-2/85NDLR403.pdf

 

  1. Medical Marijuana: The Conflict Between Scientific Evidence and Political Ideology, Peter J. Cohen, Utah Law Review, Vol 2009, No.1 http://epubs.utah.edu/index.php/ulr/article/viewArticle/143

Endnotes:

[1] This NACUANOTE is an update to Pam Merrell and Linda Schutjer, Medical Marijuana on Campus – Yes, It Is Still Illegal, 9 NACUANOTE 3, Dec. 22, 2010.

[2] As of publication, states that have effectively legalized medical or recreational marijuana use are Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Note that some states have affirmatively legalized marijuana for medical purposes, while others have merely 'decriminalized' it or provided a defense to criminal prosecution. A few, like Colorado and Washington, have now affirmatively decriminalized all recreational uses. Many other states have pending legislation or ballot initiatives to legalize medical marijuana. For a summary of each state's law, as passed or proposed, see http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.

[3] As of publication, these states are: California, Colorado, Kentucky, Maine, Montana, North Dakota, Oregon, Vermont, and West Virginia. See National Conference of State Legislatures summary of the laws of each such state at: http://www.ncsl.org/research/agriculture-and-rural-development/state-industrial-hemp-statutes.aspx.

[4] The Agricultural Act of 2014, Pub. L. No. 113-79, § 7606, 128 Stat. 649 (2014), also known as the 2014 Farm Bill.

[5] The CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act, Pub. L. No. 91-513, 84 Stat. 1236, created a comprehensive framework for regulating the production, distribution, and possession of five “schedules” of controlled substances.  Congress found that most of those substances—those listed in Schedules II through V—“have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.”  See 21 U.S.C. § 801(1).  By contrast, Congress determined that Schedule I drugs, including marijuana, have a high potential for abuse, and lack any accepted medical use or safety for use in medically supervised treatment.  See 21 U.S.C. § 812(b)(1).  By classifying marijuana as a Schedule I drug, Congress made the manufacture, distribution, or possession of marijuana a criminal offense.  See 21 U.S.C. §§ 841(a)(1), 844(a).  As noted, there exists a limited exception for Food and Drug Administration-approved research.  See 21 U.S.C. § 823(f); United States v. Oakland Cannabis Buyers' Coop.,532 U.S. 483, 490 (2001).

[6] See 21 U.S.C. § 812(c)(c).

[7] Id. § 812(c)(c)(10).

[8] See also TODD GARVEY, CONG. RESEARCH SERV., MEDICAL MARIJUANA: THE SUPREMACY CLAUSE, FEDERALISM, AND THE INTERPLAY BETWEEN STATE AND FEDERAL LAWS (2012), available at http://www.fas.org/sgp/crs/misc/R42398.pdf.

[9] 706 F.3d 438 (2013), cert. denied, 134 S. Ct. 267 (2013).

[10] Id. at 451.

[11] Hemp Indus. Ass'n v. Drug Enforcement Admin. (Hemp I), 333 F.3d 1082 (9th Cir. 2003); Hemp Indus. Ass'n v. Drug Enforcement Admin. (Hemp II), 357 F.3d 1012 (9th Cir. 2004).

[12] Hemp I, 333 F.3d at 1088–89 (citing S. Rep 900, 75th Cong., 1st Sess. 1, 4 (1937)).

[13] Hemp II, 357 F.3d at 1013. This phrase was criticized as a "biologically fictitious category" by Aaron Roussell, The Forensic Identification of Marijuana: Suspicion, Moral Danger, and the Creation of Non-Psychoactive THC, 22 ALB L.J. SCI. & TECH 103, 127 (2012).

[14] Hemp I, 333 F.3d at 1086.

[15] 21 U.S.C. § 802(16).

[16] United States v. White Plume, 447 F.3d 1067, 1073 (8th Cir. 2006).

[17] See Christine Kolosov, Evaluating the Public Interest: Regulation of Industrial Hemp Under the Controlled Substances Act, 57 UCLA L. REV. 237, 246 (2009), available at http://uclalawreview.org/pdf/57-1-5.pdf.

[18] Id. at 247.

[19] See Memorandum from David W. Ogden, Dep. Atty Gen, DOJ, for Selected U.S. Atty's re Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009), available at http://www.justice.gov/opa/documents/medical-marijuana.pdf.

[20] See Tim Dickinson, Obama's War on Pot, ROLLING STONE (Feb. 16, 2012), available at http://www.rollingstone.com/politics/news/obamas-war-on-pot-20120216.

[21] See Memorandum from James M. Cole, Dep. Att'y Gen., DOJ, for Selected U.S. Atty's re Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011), available at http://www.azdhs.gov/medicalmarijuana/documents/resources/guidance_regarding_medical_marijuana.pdf

[22] See James M. Cole, Dept. Att'y Gen., Guidance Regarding Marijuana Enforcement (August 29, 2013), available at http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.

[23] Id.

[24] See, e.g., Gene Johnson, Olympic National Park bust an example of where state, federal pot laws collide, PENINSULADAILYNEWS.COM (Sep.16, 2013), http://www.peninsuladailynews.com/article/20130917/NEWS/309179988/olympic-national-park-bust-an-example-of-where-state-federal-pot; Ray Kisonas, Federal Conviction Shocks Marijuana Grower, MONROENEWS.COM (May 3, 2012), http://www.monroenews.com/news/2012/may/02/federal-conviction-shocks-marijuana-grower/.

[25] 21 U.S.C. § 856.

[26] 21 U.S.C. § 846.

[27] 21 U.S.C. § 1957.

[28] Marijuana in California and Colorado - Highs and Laws - Jerky progress towards legislation, THE ECONOMIST (Dec. 3, 2011) http://www.economist.com/node/21541065

[29] See Lucia Graves, Lawmakers in 5 States Tell Feds To Back Off Medical Marijuana, HUFFINGTON POST (Apr. 2, 2012), http://www.huffingtonpost.com/2012/04/02/lawmakers-in-5-states-tell-feds-medical-marijuana_n_1397811.html?view=print&comm_ref=false (quoting an open letter from Assemblyman Tom Ammiano, Sen. Jeanne Kohl-Welles, Rep. Antonio Maestas, Sen. Cisco McSorley, Assemblyman Chris Norby, Rep. Deborah Sanderson and Sen. Pat Steadman to the federal government). See also GARVY, supra note 8.

[30] See Jacob Sullum, Bankers Wary of Marijuana Money Say A New DOJ Memo Won't Be Enough to Make Them Comfortable, FORBES MAGAZINE (Feb. 3, 2014), http://www.forbes.com/sites/jacobsullum/2014/02/03/bankers-wary-of-marijuana-money-say-a-new-doj-memo-wont-be-enough-to-make-them-comfortable/.

[31] See Department of the Treasury Financial Crimes Enforcement Network, Guidance, FIN-2014-G001, BSA Expectations Regarding Marijuana-Related Business (February 14, 2014), available at http://www.fincen.gov/statutes_regs/guidance/pdf/FIN-2014-G001.pdf.

[32] See Memorandum from James M. Cole, Dept. Att’y Gen., Guidance Regarding Marijuana Related Financial Crimes (February 14, 2014), available at http://www.dfi.wa.gov/banks/pdf/dept-of-justice-memo.pdf.

[33] See Jacob Sullum, The Feds' Scary Reassurances To Banks That Deal With State-Licensed Marijuana Businesses, FORBES MAGAZINE (Feb. 17, 2014) available at http://www.forbes.com/sites/jacobsullum/2014/02/17/the-feds-scary-reassurances-to-banks-that-deal-with-state-licensed-marijuana-businesses/; Zane Gilmer, Financial Industry Should Remain Cautious Despite Marijuana Banking Guidance, Bloomberg BNA (Feb. 25, 2014), available at http://www.perkinscoie.com/files/upload/02_27_2014_Gilmer_BNA.PDF.

[34] 50 U.S.C. § 3002, 435b (The Bond Amendment contains no ability to waive this prohibition).

[35] Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).

[36] Elliot Ginsburg, Medical Marij See Jacob Sullum, The Feds' Scary Reassurances To Banks That Deal With State-Licensed Marijuana Businesses, FORBES MAGAZINE (Feb. 17, 2014) available at http://www.forbes.com/sites/jacobsullum/2014/02/17/the-feds-scary-reassurances-to-banks-that-deal-with-state-licensed-marijuana-businesses/; Zane Gilmer, Financial Industry Should Remain Cautious Despite Marijuana Banking Guidance, Bloomberg BNA (Feb. 25, 2014), available at http://www.perkinscoie.com/files/upload/02_27_2014_Gilmer_BNA.PDF.uana Franchising : A half baked or fully baked plan, 15 THE FRANCHISE LAWYER, NO. 3 (2012), available at http://www.americanbar.org/publications/franchise_lawyer/2012/summer_2012/medical_marijuana_franchising_a_ half_baked_or_fully_baked_plan.html. Also in Colorado, the Regulation Counsel for the State has said that it will treat attorneys' use of medical marijuana in the same manner as any other prescription medication – the issue will not be the drug used but the ability of the practitioner to perform necessary duties. Randy Robinson, Ethical Issues, Medical Marijuana & the Practice of Law Panel, DULR ONLINE (Feb. 8, 2012), http://www.denverlawreview.org/marijuana-at-the-crossroads/2012/2/8/ethical-issues-medical-marijuana-the-practice-of-law-panel.html.

[37] 21 U.S.C. § 824(a); see also U.S. Dep’t of Justice, Drug Enforcement Admin., Office of Diversion Control, Practitioner’s Manual – An Informal Outline of the Controlled Substances Act (2006), available at  http://www.deadiversion.usdoj.gov/pubs/manuals/pract/pract_manual012508.pdf.

[38] Since the vast majority of States that have taken steps to legalize marijuana have done so in the context of medical uses, this Note will simply refer to “medical marijuana” with the understanding that the same laws and concepts apply to “legal recreational use” except as otherwise noted. 

[39] See, e.g., Colorado (COLO. CONST. art. XVIII, § 14); Rhode Island (R.I. GEN. LAWS § 21-28.6-7 (2007)); Michigan (MICH. COMP. LAWS § 333.26427(c)(2) (2008)); and New Jersey (P.L. 2009, c.307 (Jan. 18, 2010)).

[40] 41 U.S.C. §§ 701–07.

[41] 29 U.S.C. §§ 651–678.

[42] Americans with Disabilities Act, 42 U.S.C. § 12114(a) ("[T]he term 'qualified individual with a disability' shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use."); Rehabilitation Act, 29 U.S.C. § 701(a) ("[T]he term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use.").

[43] Ross v. Ragingwire Telecomm., Inc., 70 Cal. Rptr. 3d 382, 387 (Cal. 2008).

[44] Roe v. Teletech Customer Care Mgmt., 216 P.3d 1055, 1061 (Wash. 2009).

[45] Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indus., 348 Or. 159, 157 (Or. 2010); see also Johnson v. Columbia Falls Aluminum Co., LLC., 2009 Mont. LEXIS 120 (Mont. Mar. 31, 2009).

[46] See Colo. Rev. Stat. § 24-34-402.5 (2007).  It should also be noted that efforts are underway in at least one other state to specifically adopt laws that prohibit employers from taking adverse employment action against employees based on their status as a holder of a medical marijuana card.  See Howard Fisher, Medical Marijuana Law Returning to Arizona Ballot, THE VERDE INDEPENDENT (Mar. 23, 2010), http://www.verdenews.com/main.asp?Search=1&ArticleID=35582&SectionID=1&SubSectionID=1189&S=1.

[47] See Beinor v. Indus. Claim Appeals Office,265 P.3d 970, 976 (Colo. App. 2011) (upholding the denial of unemployment benefits for street cleaner terminated for failing employer’s drug test due to medical marijuana use in compliance with Colorado medical marijuana laws); see also Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. App. 2013) (finding that use of marijuana by persons on the state’s medical marijuana registry is not a “lawful activity” for purposes of Colo. Rev. Stat. § 24-34-402.5 (2012)).

[48] Medical Use of Marijuana Amendment, Colo. Const. art. XVIII, § 14(2)(a) (“Colorado Amendment”); Medical Cannabis (Formerly Medical Marijuana), Wash. Rev. Code § 69.51A.040(1)(2012).

[49] Colo. Const. art. XVIII, § 14 (6)(a).

[50] See Ariz. Rev. Stat. § 36-2813(B) (2010).

[51] Id.

[52] Id. at § 36-2814.

[53] Many laws, including the Omnibus Transportation Employee Testing Act of 1991 and the U.S. Department for Defense's Rules and Regulations for Federal Contractors, also require employee drug testing, and thus foreclose employment opportunities to student job-seekers who use medical marijuana.

[54] See the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 862 (2009); see also Gayla Martindale, Drug Convictions - How They Affect Your Financial Aid, STATEUNIVERSITY.COM (Dec. 11, 2007), http://www.stateuniversity.com/blog/permalink/Drug-Convictions-How-They-Affect-Your-Financial-Aid.html.

[55] See U.S. Dep’t of Justice, The DEA Position on Marijuana (Jan. 2011), available at http://www.justice.gov/dea/docs/marijuana_position_2011.pdf.

[56] See United Nations, Single Convention on Narcotic Drugs, 1961, Control of Cannabis 14 (1972), available at http://www.unodc.org/pdf/convention_1961_en.pdf.

[57] For more guidance on the procedures for obtaining marijuana for medical research, see National Institutes of Health, Announcement of the Department of Health and Human Services' Guidance on Procedures for the Provision of Marijuana and Medical Research (May 21, 1999), http://grants.nih.gov/grants/guide/notice-files/not99-091.html.

[58] In 2001, University of Massachusetts researcher Lyle Craker sought DEA approval to grow marijuana for research purposes.  After protracted proceedings in which an Administrative Law Judge approved his request, the DEA rejected the ALJ’s findings and refused to approve Craker’s growing of marijuana for research purposes.  The DEA found that the National Center source was sufficient for all marijuana researchers and no additional sources were needed.  74 Fed. Reg. 9, 2101 (Jan. 14, 2009).

[59] On May 11, 2012, the U.S. Court of Appeals for the First Circuit heard oral arguments the appeal of the DEA's rejection of a license request from a University of Massachusetts-Amherst professor Lyle Craker seeking to grow marijuana for research purposes. In re Craker - Transcript of arguments, available at http://www.maps.org/mmj/dealawsuit/Craker_v_DEA_oral_argument%20transcriptRDanotated.pdf. This appeal was rejected by the court on April 15, 2013, Craker v. Drug Enforcement Admin., 714 F.3d 17 (1st Cir. 2013).

[60] See USDA ECONOMIC RESEARCH SERVICE, INDUSTRIAL HEMP IN THE UNITED STATES: STATUS AND MARKET POTENTIAL, AGRICULTURAL ECONOMIC REPORT NO. (AGES-001E) 43 (last update June 5, 2012), available at http://www.ers.usda.gov/media/328262/ages001e_1_.pdf.

[61] See Renée Johnson, Cong. Research Serv., Hemp as an Agricultural Commodity (last update July 24, 2013), available at https://www.fas.org/sgp/crs/misc/RL32725.pdf.

[62] The Agricultural Act of 2014, Pub. L. No. 113-79, §7606 (b)(2), 128 Stat. 649 (2014).

[63] Note that similar state legislation on industrial hemp does contain expansive language allowing not only cultivation but also other activities for the purpose of research and development. See the National Conference of State Legislatures State Industrial Hemp Statute page for a nice summary: http://www.ncsl.org/research/agriculture-and-rural-development/state-industrial-hemp-statutes.aspx.

[64] For a discussion of this and other barriers to hemp cultivation, see Melanie Asmar, Hemp farmers can now register with the state to grow the crop, Denver Westword Blogs (March 3, 2014), http://blogs.westword.com/latestword/2014/03/hemp_farmers_colorado_registration.php.

[65] In a recent conversation with a DEA employee, the author was advised that the DEA is taking the position that, since the CSA does not distinguish between marijuana and hemp, there is no special classification for low THC marijuana and anyone desiring to conduct research with any of these products will need to first obtain registration as a Schedule I Researcher with DEA.  This individual had been advised by the DEA’s Washington office that the Act did not change this position and that registration would still be required in order to engage in activities that are seemingly permitted by the Act.  The DEA position makes the ambiguities in the Act even more problematic and, unless that position changes, it is unclear how many universities will be willing to undertake research in reliance on the Act even if they can overcome the practical issues discussed.