Medical marijuana advocates have focused attention recently on the possibility that federal law making marijuana illegal could be updated soon to reflect scientific consensus and experience from state regulatory programs regarding the benefits of medical marijuana. Specifically, momentum has been gathering behind efforts to reclassify marijuana under the Controlled Substances Act (CSA). Regardless of how marijuana is rescheduled under federal law, the Food and Drug Administration (FDA) could consider medical marijuana products to be unapproved “new drugs” subject to regulation under the Food, Drug, and Cosmetic Act (FDCA). Thus, the potential for conflict between state and federal regulation of marijuana would continue to exist. This article will examine possibilities for avoiding this continuing conflict.

Background

As of the end of 2023, 38 states had legalized marijuana in some fashion, with 14 of those states having laws permitting use of medical marijuana only. Currently, however, marijuana is a Schedule I drug under federal law. Thus far, state medical marijuana regimes have been able to coexist in this environment because the federal government has taken a restrained policy toward the enforcement of CSA in states that have legalized medical marijuana. In particular, since 2009, the DOJ has encouraged its attorneys to exercise discretion and avoid prosecuting individuals who acted in compliance with state medical marijuana laws. Additionally, since 2015, Congress has included riders in its annual appropriations bills prohibiting the use of federal funds to prevent states from implementing medical marijuana programs.