The attorney general of California has determined that the state could put itself and its employees at “significant legal risk” of federal enforcement action if it were to authorize interstate marijuana commerce.
In a legal opinion sent to state cannabis regulators on Tuesday, Attorney General Rob Bonta (D) said there are “strong arguments” that state officials could be federally prosecuted for implementing a law that permits cannabis imports and exports between consenting legal states.
The opinion comes in response to a request earlier this year from the California Department of Cannabis Control (DCC), seeking the attorney general’s assessment of potential liability for permitting interstate commerce under a law Gov. Gavin Newsom (D) signed last year.
While DCC argued in its request that the state would not find itself at substantial legal risk for allowing the activity, the attorney general’s opinion says it cannot rule out that possibility given the threat of federal preemption under the Controlled Substances Act (CSA) that strictly prohibits cannabis.
The law Newsom signed stipulated that the governor would be authorized to enter into interstate commerce agreements with other legal states if federal law or guidance changed, or if the state attorney general ruled out the possibility of “significant legal risk.”
“We appreciate the Attorney General’s conclusion that the arguments supporting interstate agreements are ‘strong,’” a DCC spokesperson said in a statement shared with Marijuana Moment on Wednesday. “Unfortunately, even strong arguments cannot put novel questions beyond all debate. If you are looking for certainty, you will not find it in cannabis.”
“But if you are looking for leadership, you will continue to find it here. California has long been at the forefront of efforts to legalize and regulate cannabis, even in the face of legal and political uncertainty,” they added. “And although California’s cannabis industry has long been at the heart of an unregulated interstate market, we will continue—under Governor Newsom’s leadership—to search for ways to bring that market into a regulated framework that protects the public.”
Adam Smith, founder of the nonprofit Alliance for Sensible Markets, told Marijuana Moment that they “applaud and appreciate Governor Newsom’s effort to meet the requirements of the CA law to move forward towards state-regulated commerce between legal markets.”
“Fixing the economics of legal cannabis is imperative to saving thousands of small farms and businesses and moving millions of patients and consumers into safe, regulated, and cost-competitive markets,” he said. “And while we deeply disagree with both the methods and legal analysis in the AG’s opinion, the CA law, like the OR/WA laws, provide a direct path to commerce via an indication of tolerance from the US DOJ. We call on the three west coast governors to seek that tolerant guidance now.”
This story is developing and will be updated.
Read the full California AG opinion on interstate cannabis commerce below: