Attorney At Law

Guide to Federal Marijuana Laws

By Daisy Rogozinsky
/
July 26, 2022

The legalization of marijuana in the United States has increased in recent years. Currently, recreational marijuana is legal in 16 states and medicinal marijuana is legal in 19. However, the possession and sale of marijuana is still a federal crime, with marijuana considered to be a controlled substance on the level of cocaine or heroin. To help you better understand federal marijuana laws and the way that they may impact you, we’ve put together the following guide.

1. Chart of Federal Marijuana Laws

Below is a chart outlining the exact penalties and sentences for marijuana-related offenses. 

Offense Penalty Incarceration Maximum Fine

Possession

Any amount (first offense) Misdemeanor 1 year $1,000
Any amount (second offense) Misdemeanor 15 days minimum - 2 years $2,500
Any amount (subsequent offense) Misdemeanor or felony  90 days minimum - 3 years $5,000

Sale

Less than 50 kg Felony 5 years $250,000
50 kg - 99 kg Felony 20 years $1,000,000
100 kg - 999 kg Felony 5 years minimum - 40 years $500,000
1,000 kg or more Felony 10 years minimum - life $1,000,000

Cultivation

Less than 50 plants Felony 5 years $250,000
50 - 99 plants Felony 20 years $1,000,000
100 - 999 plants Felony 5 years minimum - 40 years $500,000
1,000 plants or more Felony 10 years minimum - life $1,000,000

Paraphernalia

Sale of paraphernalia Felony 3 years N/A

Note that there is a double penalty for selling marijuana to a minor or within 1,000 feet of a school and that a gift of a small amount of marijuana counts as possession rather than sale. 

2. Explanation of Federal Marijuana Laws

The use, sale, and distribution of marijuana has been illegal since the 1930s. Under the Controlled Substances Act (CSA), marijuana is considered a Schedule I controlled substance. This designation is for drugs with a high potential for abuse, lack of medical value, and an inability to be safely prescribed. 

As such, anyone growing, marketing, or distributing marijuana is in violation of multiple federal laws. Additionally, providing services to a business that does any of these can also violate federal law. It is also illegal to knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances. 

As you will see in the chart above, penalties for violating the Controlled Substances Act increase when larger quantities of drugs are involved. 

It is important to note that while these laws do exist, they are not typically enforced. Attorney General Merrick Garland has stated that he believes the federal government should not prioritize low-level drug crimes. As such, individuals who adhere to their state’s marijuana laws and do not bring drugs across state lines are not usually charged with cannabis-related crimes. 

In 2013, the Department of Justice under President Obama's administration formally announced that it would not interfere with marijuana operations that strictly complied with state regulations. Instead, federal law enforcement would focus on targeting:

  • Distribution of marijuana to minors
  • Driving under the influence of marijuana
  • Using state-legal marijuana sales as a cover for illegal activity
  • Marijuana revenue that appears to fund gangs
  • Marijuana moving from states where it's legal to states where it's illegal
  • Violence and firearm use in growing or distributing marijuana
  • Marijuana possession or use on federal property such as national parks

Additionally, there is a budget amendment called the Rohrabacher-Farr or CJS amendment that has been renewed yearly since 2014 that prohibits the Department of Justice from using funds to prevent states from implementing medical marijuana walls. 

However, in  2018, under President Trump's administration, the Department of Justice abruptly terminated Obama’s policy and announced that federal prosecutors can pursue criminal cases whenever state and federal marijuana laws collide.

That being said, this has not exactly turned into action, as federal prosecutions for marijuana trafficking have declined since. And law enforcement officers still make the vast majority of arrests for marijuana offenses under state, not federal law. 

3. Possible Issues with Federal Marijuana Laws

According to the Supremacy Clause of the United States Constitution (Article VI, Clause 2), when federal and state laws conflict, the federal law is superior. However, there is an exception in the Tenth Amendment that delegates policing powers to the states. Practically, this means that states cannot prevent federal prosecution of their citizens over marijuana charges, but they can eliminate state prosecutions. 

This conflict between state and federal marijuana laws can lead to a number of issues, including the following.

Employment

According to the Fair Labor Standards Act, employers nationwide must maintain an environment consistent with both state and federal rules. As such, employers in states where marijuana use is legal can still ban marijuana use among workers because it is illegal federally. Even though state employment laws usually find it unlawful to prohibit legal activities as a condition of employment, employees can be fired for using marijuana even away from work. 

Prescription

Because it is a Schedule I drug, doctors cannot legally prescribe marijuana. Instead, they usually “recommend” it. There have been instances where doctors lost their licenses over marijuana issues. 

Law

Because it is seen as providing advice on how to violate federal drug laws, lawyers also risk their licenses when advising clients involved in the marijuana industry.

Housing

Because marijuana is federally classified as a controlled substance, landlords can prohibit it on their property, even when it is in compliance with state law. As such, renters can be evicted for marijuana possession or use if it is prohibited in their lease. Section 8 or other federal housing aid recipients can lose their benefits or be evicted for using marijuana. 

Taxes

The Internal Revenue Code Section 280E prohibits marijuana businesses from deducting ordinary business expenses such as training and transportation. As such, marijuana businesses must typically employ shrewd accounting practices to incorporate many expenses under the category of “cost of goods sold.”

Right to Bear Arms

Having a medical marijuana card can disqualify a person from buying a gun. 

Banking

Marijuana businesses often have a difficult time opening accounts with many banks and credit card companies that fear prosecution under the Controlled Substances Act.

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