Alliance for Sensible Markets Calls On CA, OR, CO & WA To Join Interstate Compact For Cannabis Trade

To: The Honorable Kate Brown
The Honorable Jay Inslee
The Honorable Gavin Newsom
The Honorable Jared Polis

Dear Governors,

When the federal government legalizes cannabis, the Commerce Clause of the US Constitution guarantees that producers across our four states will have non-discriminatory access to every legal adult use and medical market in the country. That will be worth billions of dollars per year to our states’ economies, increasing state revenues and spurring investment, expansion, business formation, and jobs, and could, if it happened soon, save thousands of small farms and businesses from extinction.

But while federal legalization feels inevitable, it could still be years away.

We write to you today, representing businesses across our four states, as well as consumers patients, and veterans nationwide, to respectfully ask that you seek guidance from the US Department of Justice on what their stance would be if two or more adult-use or medical cannabis states were to decide to regulate commerce between or among them.

We believe that a tolerant response from the Department of Justice will precipitate meaningful dialogue around commerce between producer states like ours and any number of legal or legalizing adult-use or medical states that would themselves benefit from access to a stable, sustainable, and world class supply chain.

State legal cannabis industries operate today in direct violation of federal law. Nor do they escape federal jurisdiction under the Commerce Clause by virtue of being state-siloed. This is clear under nearly eighty years of Supreme Court precedent beginning with Wickard v. Filburn, 317 US 111 (1942), and re-affirmed in the context of cannabis specifically in Gozales v. Raich 545 US 1 (2005).

The only federal authority under which adult-use markets have ever operated is the continued stance of the US Department of Justice, outlined in the since-rescinded Cole Memorandum, that cannabis businesses operating in good faith under state regulation would not be a priority for federal enforcement.

In medical cannabis, the Rohrabacher-Blumenauer Amendment already forbids the Department of Justice from using resources “to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Here, a simple clarification from DOJ on the agency’s interpretation of that Amendment could be game-changing, not only for thousands of small businesses across our states, but for millions of legal patients who still lack access to the best and most affordable legal cannabis products.

Tolerant guidance from the DOJ would be directly in line with the articulated positions of both President Biden and Attorney General Merrick Garland.

 President Biden, while consistently non-supportive of federal legalization, has been just as consistent in his support for state leadership and decision making in regulating cannabis. The President’s position was reaffirmed by White House Spokesperson Jen Psaki in her Press Briefing on April 20th of this year when she said:

“The President supports leaving decisions regarding legalization for recreational use up to the states,” and “(The President) also supports legalizing medicinal marijuana.”

Attorney General Garland for his part, testified to a House Appropriations Subcommittee on May 4th that:

“I do not think it is the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana,”

And: “It’s probably not a good use of our resources where (cannabis) is regulated by the state.”

Initiating interstate commerce now rather than potentially waiting years for federal legalization would benefit both producer and consumer states, as well as patients, consumers, small businesses, public safety, the environment, and social equity. (Please see our accompanying document “State-regulated commerce; Who wins?”)

States like ours, and the thousands of small farms and businesses that have put everything on the line to enter the legal industry, can’t afford to wait. The Department of Justice has the power to open a path now to a more sustainable and broadly beneficial cannabis industry for states that choose commerce. But to get an answer, we need to ask the question. What would DOJ do?

Oregon (first state to decriminalize cannabis,1973, first state to pass an interstate commerce law, 2019), California (first state to legalize medical cannabis, 1996), Colorado and Washington (first states to legalize adult-use cannabis, 2012) have been pioneers in the movement to legalize cannabis. If it is to be states, as President Biden has suggested, that continue leading this nation forward into a more rational cannabis future, moving towards interstate commerce and a more sustainable and broadly beneficial market is the obvious and logical next step.

And so we write today to respectfully ask for your leadership in seeking formal guidance from the US Department of Justice on state-regulated interstate trade between two or more legal adult use or medical markets. We believe that the simple act of asking the question will significantly advance the national conversation around the future of legal cannabis, and that positive guidance from DOJ will spur changes beneficial to both producer and consumer states, as well as to patients, consumers, public safety, social equity, small businesses and environmental sustainability in any legal or medical states that choose to regulate and engage in commerce in advance of federal legalization.

Thank you.