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Guide to Federal Marijuana Laws

By
Daisy Rogozinsky
/
July 26, 2022
Last reviewed by
Boruch Burnham, Esq.
/
May 8, 2023

The legalization of marijuana in the United States has increased in recent years. As of May 2023, it is legal to purchase and possess marijuana for recreational use in 22 states and Washington D.C.; an additional 15 states have legalized its use for medicinal purposes. However, the possession and sale of marijuana is still a federal crime, with marijuana considered to be a Schedule I controlled substance, which is the same level as heroin and even higher than cocaine, which is a Schedule II substance. To help you better understand federal marijuana laws and how 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 Up to1 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 Up to 5 years $250,000
50 kg - 99 kg Felony Up to 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 Up to 5 years $250,000
50 - 99 plants Felony Up to 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, a 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 can see from 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 on the books, they are often not enforced. Attorney General Merrick Garland has stated that he believes the federal government should not prioritize the prosecution of 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
  • The transportation of marijuana 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, a budget amendment called the Rohrabacher-Blumenauer that has been included in appropriations bills since 2014, prohibits the Department of Justice from using funds to interfere with the state implementation of certain medical marijuana laws.

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

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. 

While President Biden stated during his campaign that his administration would seek to decriminalize marijuana, no action has been taken to fulfill that promise as of May 2023. That said, he has pardoned thousands of people convicted of possession under federal marijuana laws and signed legislation promoting medical marijuana research.

3. Possible Issues with Federal Marijuana Laws

The Tenth Amendment of the United States Constitution grants certain policing powers to the states, while the Supremacy Clause establishes that federal law takes precedence over state law in cases of conflict. These provisions interact in a way that allows states to exercise their policing powers within their jurisdiction as long as they do not conflict with federal law. Therefore, while states have some autonomy in enforcing their own laws, they cannot impede or override federal law enforcement efforts within their borders.

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. 

Issuing prescriptions

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

Law Practice

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 complications

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. 

Tax issues

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 creative accounting practices to incorporate many expenses under the category of “cost of goods sold.”

Banking difficulties

Marijuana businesses often have difficulty opening accounts with many banks and credit card companies because they are concerned about the Federal enforcement actions against them under the Controlled Substances Act.

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