Interstate cannabis sales put California at risk of federal enforcement, AG says

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A letter from California Attorney General Rob Bonta to state regulators all but ended marijuana industry hopes of interstate cannabis commerce.

In a 36-page letter sent Dec. 19 to the Department of Cannabis Control (DCC), the state’s chief cannabis regulator, Bonta wrote that marijuana activity between legal out-of-state businesses and California licensees could result in “significant legal risk to the State of California under the federal Controlled Substances Act.”

The warning – first reported by Marijuana Moment – is not a surprise, considering federal prohibition of the plant, which cast long odds a state law allowing such sales would be put to the test.

California hopes for interstate cannabis sales rose in September 2022, when Gov. Gavin Newsom signed Senate Bill 1326 to create interstate commerce pacts, overriding a longstanding prohibition on the transportation and distribution of marijuana products across state lines.

Enactment of the law, however, was contingent on several triggers, including federal legalization, approvals from the Department of Justice and other major U.S. marijuana policy shifts.

SB 1326 went into effect on Jan. 1 2023, and shortly thereafter, the DCC asked Bonta, a longtime industry advocate as an Assembly member, to provide some guidance on interstate sales.

In a statement sent to MJBizDaily and other news outlets, the DCC said that “we appreciate the attorney general’s conclusion that the arguments supporting interstate agreements are strong. Unfortunately, even strong arguments cannot put novel questions beyond all debate.”

Bonta’s response also made a passing reference to protecting state employees who might be open to legal risks by greenlighting interstate cannabis commerce.

“Courts have disagreed about the scope of federal preemption in the cannabis context, and no court has ever considered a preemption challenge to a state law authorizing interstate cannabis sales,” the letter noted.

“The law is also unsettled as to whether state officials could be federally prosecuted for implementing state law in this area.”

In May, Washington became the third state to create an interstate cannabis commerce law, thought the statute also was contingent on the U.S. government legalizing marijuana or allowing such transactions between states.

Oregon became the first state with an interstate marijuana commerce provision in June 2019 when its governor signed such activity into law.