Protection of Adult-Use Cannabis from Federal Enforcement Passes House in Resounding Bipartisan Vote

On Thursday, the United States House of Representatives voted 267-165 to prohibit the United States Department of Justice from using appropriated funds to interfere with state-legal cannabis programs. The Rohrabacher-Farr Amendment (a.k.a. the Hinchey–Rohrabacher, Rohrabacher-Blumenauer, and Joyce Amendment) has provided similar protection to state-legal cannabis programs over the past decade, but only to medical programs. The new amendment would extend to adult-use cannabis regimes in addition to medical cannabis programs (but only if it is approved by the Senate and signed by the President). The amendment was introduced by Earl Blumenauer of Oregon as H. Amdt. 398 to H.R.3055, a bill providing appropriations for Departments of Commerce and Justice, Science, and Related Agencies for the fiscal year ending September 30, 2020.

A Spirited Debate With Alabama Leading the Opposition

Following Mr. Blumenauer’s introduction of the amendment, Mr. Robert Aderholt of (hemp friendly) Alabama spoke in opposition, arguing that under the Controlled Substances Act, the Drug Enforcement Administration defines schedule I drugs as having no current acceptable medical use and a high potential for abuse, and that there is no scientifically recognized medical benefit from smoking or eating marijuana plants.

Mr. Blumenauer responded with:

“[i]f we were rescheduling drugs today, cannabis probably wouldn’t be scheduled at all, and what would be Schedule I is tobacco, which is highly addictive and deadly. It is widely known now that there are, in fact, medicinal purposes to be obtained from using cannabis. That is why the voters in the gentleman’s own State just approved medical marijuana.

But the evidence is clear. You can find that out with children in your State who use medical cannabis to stop extreme seizure disorders; people who use cannabis to be able to stop the violent nausea associated with chemotherapy; or veterans that use it for PTSD, traumatic brain injury, or chronic pain. This is what the American people have demanded, why it is now legal in 33 States, why it has some version in 47, and is supported by two-thirds of the American public and 90 percent for medical marijuana. It is time that we extend this protection to these State legal activities so that they can thrive and move forward.”

Mr. Blumenauer yielded time to Mr. Jose Serrano of New York and Ms. Eleanor Holmes Norton of Washington, DC, who emphasized the importance of this protection to their respective jurisdictions. Following a voice vote that favored the Ayes, Mr. Aderholt demanded a recorded vote. The recorded vote showed wide bipartisan support for the measure, with 41 Republicans supporting.

Breaking Down the Rohrabacher-Farr Amendment

The Rohrabacher-Farr Amendment is a rider in an omnibus appropriations bill funding the federal government. Since it was first passed, it has been renewed periodically with bipartisan support. The Rohrabacher-Farr Amendment, which prohibits interference with state-legal medical cannabis programs only, is still included as Section 531 of H.R. 3055. The current version of the Rohrabacher-Farr Amendment is in effect through September 2019.

The Ninth Circuit has interpreted the Rohrabacher-Farr Amendment as prohibiting the Department of Justice from spending funds from relevant appropriations acts for the prosecution of individuals engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. See U.S. v McIntosh (9th Cir 2016) 833 F3d 1163, 1178 (McIntosh). In McIntosh, the Ninth Circuit warned that the federal government can appropriate funds for prosecutions under the Controlled Substances Act tomorrow, or the temporary lack of funds could become a more permanent lack of funds if Congress continues to include the same rider in future appropriations bills.

Since the McIntosh decision, the Rohrabacher-Farr Amendment has been useful in halting federal prosecutions and asset forfeiture actions.  (See e.g. U.S. v Pisarski (N.D. Cal, No. 14–cr–00278–RS–1), and this story describing the return of $257,733 seized by law enforcement officers from a licensed California cannabis distributor.) Pursuant to the Ninth Circuit’s interpretation of the Rohrabacher-Farr Amendment, where a person’s conduct strictly complies with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana,  federal prosecution is barred unless and until a future appropriations bill permits the government to proceed.

Bottom Line

If the new Blumenauer Amendment becomes law, the same protections from federal prosecution afforded to state-legal medical cannabis programs will extend to adult use programs. Unless and until that happens, however, adult use programs remain at risk. We perceive that risk as relatively marginal, but hopefully the Senate agrees that it is time to eradicate the possibility altogether.