On August 19, 2013, the U.S. Department of Justice issued its current Guidance Regarding Marijuana Enforcement, which effectively deferred enforcement under the Controlled Substances Act, 21 U.S.C. § 811 et. seq. (the “CSA”) with respect to medical marijuana to those states “that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana.”

On December 13, 2014, Congress passed government spending bill, H.R. 83 (the “Act”), which included provisions that appear to further insulate the participants in the medical marijuana industry in states that have legalized medical marijuana from enforcement under the CSA.   In particular, the Act provides that the funds made available to the Department of Justice pursuant to the Act may not be used to prevent those states that have enacted medical cannabis legislation “from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Notwithstanding the Act, marijuana remains a “Schedule I” substance under the CSA that is unlawful to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” in any form.  Thus, the Act and the DOJ’s earlier guidance do not eliminate the conflict between the CSA and state legislation legalizing marijuana, nor do they resolve the ethical dilemma that may arise for lawyers in providing guidance in this area as a result of the conflicting state and federal legislation.  That dilemma is discussed in detail in the attached article written by me and my partner Phil Lebowitz.