Medical Cannabis Laws

Cannabis is illegal at the federal level. The federal government regulates drugs and medicines through the Controlled Substances Act (CSA) (21 U.S.C. § 811), placing substances deemed potentially addictive or harmful in a schedule, according to their relative potential for abuse and medicinal value. Under the CSA, cannabis is classified as a Schedule I drug, which means that the federal government views cannabis as highly addictive and having no currently accepted medical use: see ASA's History of Cannabis Scheduling.

Advocates and members of Congress have attempted to change that federal designation through citizen rescheduling petitions and legislation introduced in every Congress – all without success.

In 1996, patient advocates successfully brought their case to the voters in California and Arizona, passing medical cannabis laws in defiance of federal law. From the start, the federal government attempted to undermine state medical cannabis laws with tactics of interference and intimidation. This included threats to doctors and the prosecution of patients and those providing medical cannabis to patients. Between 1996 and 2014, the US government spent nearly a billion dollars on raiding, arresting, persecuting, and jailing medical cannabis patients and their providers. (See ASA’s What is the Cost Report for more details) 

In 2014, Congress called a ceasefire in the federal war on medical cannabis. In the first change in federal law affecting patients since 1970, when it classified cannabis as a dangerous drug with no acceptable medical use, Congress approved a budget amendment that prohibits Justice Department funds from being used to prevent states from implementing medical cannabis laws. This restriction on federal enforcement continues to be a part of the funding bill for the Commerce-Justice-Science (CJS) budgets. It expires at the end of each fiscal year without additional action by Congress. 

In 2018, the U.S. House of Representatives and Senate passed legislation to regulate industrial hemp production. The Agricultural Improvement Act of 2018, also known as the Farm Bill, defined cannabis varieties with less than 0.3% THC by dry weight. Under the law, state departments of agriculture submit hemp cultivation plans to the U.S. Department of Agriculture (USDA) for approval; once approved, cultivators can obtain USDA licenses. If a state does not submit a plan, individual farmers may apply directly to the USDA. As of 2022, USDA-licensed hemp is being cultivated in all 50 states; 44 states have approved hemp programs, and the other six states have directly licensed farmers. The law allows for interstate commerce in hemp products and extracts such as CBD. 

In October 2022, Biden issued a statement announcing that he is pardoning individuals with federal cannabis possession convictions, calling on Governors to do the same, and calling on HHS to look into the scheduling of cannabis. This action did not change the legal status of cannabis. In December 2022, Biden signed the Medical Marijuana and Cannabidiol Research Act into law, which removed barriers for research, created federal protections for medical professionals, and called on HHS and NIH to provide the Senate with a report on research priorities and the ability to use existing funds to implement the report findings. 

In January 2023, the FDA announced that it could not regulate CBD under its current authorities for dietary supplements and conventional foods, citing limits in federal law and existing precedent under 21 U.S.C. § 321(ff)(3), including the Cholestin/Pharmanex line of interpretation, and called on Congress to create a new pathway to regulate these products. 

In January 2024, the Department of Health and Human Services’ Scheduling recommendation to the Drug Enforcement Administration was released, and in May 2024, the DOJ and DEA published a Notice of Proposed Rulemaking (NPRM), acting on HHS's recommendations to move marijuana from Schedule I to Schedule III, which opened the public comment process (See ASA's submitted comments). In November 2024, Administrative Law Judge John J. Mulrooney released the final witness list for the rescheduling proceedings. In January 2025, procedural motions and appeals delayed the hearings.

In November 2025, Congress passed H.R. 5371, the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, which added statutory definitions for hemp products that were omitted from the 2018 Farm Bill, specifically “industrial hemp” and “hemp-derived cannabinoid products.” 

• Amends Section 297A of the Agricultural Marketing Act of 1946 (7 U.S.C. § 1639o); provisions do not expire with FY2026
• Establishes new definitions for Industrial hemp, intermediate hemp-derived cannabinoid products, and hemp-derived cannabinoid products
• Explicitly excludes cannabinoid products from the definition of industrial hemp
• Revises the THC threshold to include “total THC” (<0.3%), capturing all detectable tetrahydrocannabinol compounds, including THCa, on a dry-weight basis
• Prohibits all synthetic cannabinoids
• Prohibits products containing more than 0.4 mg THC per container
• Prohibits seeds capable of producing cannabis varieties exceeding 0.3% THC

These changes take effect on November 11, 2026.

In December 2025, President Trump signed an Executive Order directing the Department of Justice to complete the ongoing process of rescheduling marijuana to Schedule III of the Controlled Substances Act. The order also directed the White House to work with Congress so Americans could benefit from access to appropriate full-spectrum CBD products while restricting products that pose serious health risks. In addition, it instructed the Department of Health and Human Services to develop research methods and models using real-world evidence to improve access to hemp-derived cannabinoid products in accordance with federal law and to help inform standards of care.

49 states and most US territories have passed laws allowing medical cannabis use in some form by qualifying patients. Of those states, some only allow access to CBD extracts of cannabis, but 40 states, the District of Columbia, and most U.S. territories have functional programs that include a range of cannabis products.

On APRIL 28th, 2026, the Attorney General ordered the Rescheduling of Cannabis in the state medical cannabis programs from Schedule I to Schedule III through AG Order No. 6754-2026. Learn more about what this means for patients and caregivers here! 

All other cannabis remains illegal and is classified as a Schedule I substance under the Controlled Substances Act  

Americans for Safe Access works with patient advocates and stakeholders to pass functional medical cannabis laws in states that do not have them and to improve existing state medical cannabis programs. Be sure to sign up with us to get alerts about pending legislation in your area.

The modern federal legal history of cannabis begins with the Controlled Substances Act of 1970. Congress placed cannabis in Schedule I as a temporary classification while a federal commission studied the issue. The commission, led by former Pennsylvania Governor Raymond P. Shafer, concluded that cannabis was not a danger to society or to individual users and recommended that it not be criminalized. President Nixon rejected that recommendation, and cannabis remained in Schedule I, the category reserved for substances the federal government says have no accepted medical use and a high potential for abuse.

For decades, attempts to reschedule cannabis based on medical and scientific evidence were blocked by the Drug Enforcement Administration. In 2016, the DEA denied another rescheduling petition, relying heavily on the fact that cannabis did not fit the federal government’s existing model for FDA-approved medicines. That position did not prove that cannabis lacked medical value; it showed that cannabis, as a whole-plant medicine used through state medical cannabis programs, did not fit neatly into the federal drug approval system.

In 1975, Washington, D.C. resident Robert Randall was arrested for growing cannabis in his home to treat glaucoma. He successfully raised the common law defense of medical necessity, then petitioned the federal government for access to cannabis because of that medical need. Randall became the first American to receive cannabis supplied by the federal government. His case led the FDA to create the Investigational New Drug Compassionate Access Program, which supplied federally grown cannabis to a small number of patients with serious or chronic illnesses. In 1992, after many people with AIDS applied to the program, President George H. W. Bush closed it to new patients, saying it undermined the war on drugs. One surviving participant has continued to receive federally supplied medical cannabis paid for with federal tax dollars.

In 1996, voters in California and Arizona approved medical cannabis laws in direct conflict with federal prohibition. The federal response was immediate and aggressive. U.S. Attorney General Janet Reno warned that doctors who recommended medical cannabis could lose their authority to prescribe controlled substances. Physicians, led by AIDS specialist Dr. Marcus Conant, challenged that policy in court. In 2002, the U.S. Court of Appeals for the Ninth Circuit ruled in Conant v. Walters that physicians have a First Amendment right to recommend medical cannabis to patients, although they may not help patients obtain cannabis.

Federal health officials were also asked to examine the science. From 1997 to 1999, the Institute of Medicine of the National Academy of Sciences reviewed the evidence at the direction of the Office of National Drug Control Policy. The report concluded that cannabis could be a useful treatment option for some debilitating conditions and called for more research involving patients with specific conditions. Those recommendations were largely ignored.

At the same time, the federal government worked to prevent state medical cannabis laws from operating. Federal officials used civil actions, armed raids, criminal prosecutions, and threats against patients, providers, landlords, and public officials. Between 1996 and 2014, the federal government spent nearly a billion dollars raiding, arresting, prosecuting, and imprisoning medical cannabis patients and their providers, as described in ASA’s What is the Cost Report. Between 1996 and 2002 alone, there were 14 federal raids on cannabis facilities.

ASA challenged federal misinformation directly. In 2004, ASA filed a legal challenge against HHS under the Data Quality Act, a law requiring federal agencies to rely on sound science in public information. HHS denied the petition in 2005 and later dismissed ASA’s appeal. ASA sued for judicial review, but the courts found that the Data Quality Act did not provide a right to judicial review. A separate rescheduling petition was also denied, continuing the federal pattern of rejecting medical cannabis reform through administrative channels.

In 2005, the U.S. Supreme Court decided Gonzales v. Raich, holding that Congress has constitutional authority under the Commerce Clause to prohibit cannabis even when a patient grows and uses it for medical purposes in a state where medical cannabis is legal. The decision did not invalidate state medical cannabis laws, and it did not require federal prosecutors to bring cases against patients. It did, however, confirm that patients and providers could still face federal enforcement under the Controlled Substances Act. The Court also pointed to Congress and the FDA as the branches responsible for resolving the conflict.

Federal prosecutions created another serious problem for patients and providers. In federal court, defendants were generally prevented from telling juries that the cannabis was for medical use or that their conduct complied with state law. That meant patients and providers often had no meaningful defense. Federal prosecutors gained enormous leverage to force plea deals, and raids continued for years. Between 2005 and 2009, the DOJ conducted another 212 raids and prosecuted 55 individuals. Many raids used heavily armed DEA teams and “dynamic entry” tactics, including battering rams and forced entry. Agents often seized cannabis and cash without making arrests, a practice patients and advocates came to call “smash and grab” raids.

In 2009, the Department of Justice issued the Ogden Memo, which said federal prosecutors should not prioritize cases against people in clear and unambiguous compliance with state medical cannabis laws. Many U.S. Attorneys ignored that guidance and continued raids and prosecutions. In 2011, federal prosecutors escalated pressure by sending letters to elected officials and state employees in medical cannabis states, warning that they could face prosecution for implementing state medical cannabis programs. Some letters also threatened to seize buildings used by state offices that processed medical cannabis licensing applications.

The Justice Department then issued a new 2011 policy that it described as a clarification of the Ogden Memo. After that, U.S. Attorneys sent more than 500 letters to landlords who rented to medical cannabis facilities, threatening property seizures, and began asset forfeiture proceedings against approximately 30 properties. In 2013, Deputy Attorney General James Cole issued another enforcement guidance memo stating that prosecution of state-law-compliant medical cannabis activity was not a federal priority if certain enforcement concerns were addressed. Many state medical cannabis programs were built around those priorities.

Congress responded in 2014 by placing the first real federal limit on medical cannabis enforcement since cannabis was placed in Schedule I. The Rohrabacher-Farr amendment to the Commerce, Justice, Science, and Related Agencies appropriations bill prohibited the DOJ from using federal funds to prevent states from implementing medical cannabis laws. The amendment, later known by other sponsor names as it was renewed, has appeared in every federal budget since then, but it must be renewed each year. Federal courts have interpreted the amendment to block the DOJ from spending funds on raids, arrests, prosecutions, and civil asset forfeiture actions against people acting in compliance with state medical cannabis laws.

In 2016, the Ninth Circuit applied the appropriations restriction in United States v. McIntosh and consolidated cases, holding that the DOJ could not use federal funds to prosecute individuals who strictly complied with state medical cannabis laws. The decision gave patients and providers their strongest federal protection to date, but the protection remained temporary because it depended on annual appropriations language.

In 2018, Attorney General Jeff Sessions rescinded the Cole Memo, returning discretion over cannabis prosecutions to individual federal prosecutors. The change created new uncertainty for patients, providers, and state-regulated programs. In 2019, Attorney General William Barr told the Senate Judiciary Committee that he did not intend to go after parties that had relied on the Cole Memo and complied with state law. Under the Biden Administration, Attorney General Merrick Garland did not reinstate the Cole Memo, but stated that DOJ did not intend to pursue individuals who followed state laws.

Also in 2018, Congress passed the Agricultural Improvement Act, known as the Farm Bill, which created a federal framework for industrial hemp. The law defined hemp as cannabis with less than 0.3% THC by dry weight and allowed state departments of agriculture to submit hemp cultivation plans to USDA for approval. Farmers could obtain USDA licenses to grow hemp, and the law allowed interstate commerce in hemp products and extracts such as CBD. This opened a national hemp marketplace while medical cannabis remained trapped in a separate and conflicting legal framework.

President Biden issued a statement in October 2022 announcing pardons for federal cannabis possession offenses, urging governors to take similar action, and directing HHS to review the scheduling of cannabis. That action did not change the legal status of cannabis, but it began a new federal scheduling review. In December 2022, President Biden signed the Medical Marijuana and Cannabidiol Research Expansion Act, which reduced some barriers to research, created federal protections for medical professionals discussing cannabis research, and directed HHS and NIH to report to Congress on research priorities and whether existing funds could support that work.

In January 2023, FDA announced that it could not regulate CBD under its current authorities for dietary supplements and conventional foods. FDA cited limits in federal law and existing precedent under 21 U.S.C. § 321(ff)(3), including the Cholestin/Pharmanex line of interpretation, and called on Congress to create a new regulatory pathway for CBD and related products.

In January 2024, HHS’s scheduling recommendation to DEA was released. In May 2024, DOJ and DEA published a Notice of Proposed Rulemaking to move marijuana from Schedule I to Schedule III, opening a public comment process. ASA submitted detailed comments in that proceeding; ASA’s submitted comments are available online. In November 2024, Administrative Law Judge John J. Mulrooney released the final witness list for the rescheduling proceedings. In January 2025, procedural motions and appeals delayed the hearings.

Congress also revisited hemp. In November 2025, Congress passed H.R. 5371, the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026. The law added statutory definitions that were missing from the 2018 Farm Bill, including those for industrial hemp, intermediate hemp-derived cannabinoid products, and hemp-derived cannabinoid products. It excluded cannabinoid products from the definition of industrial hemp, revised the THC threshold to include total THC, prohibited synthetic cannabinoids, prohibited products containing more than 0.4 milligrams of THC per container, and prohibited seeds capable of producing cannabis varieties above the 0.3% THC threshold. These changes are expected to take effect on November 12, 2026, and are separate from the DOJ and DEA medical cannabis order.

Executive Order 14370, Increasing Medical Marijuana and Cannabidiol Research, signed on December 18, 2025, directed the Attorney General to take all necessary steps to complete the process of rescheduling marijuana to Schedule III of the Controlled Substances Act “in the most expeditious manner” consistent with federal law, including 21 U.S.C. § 811(d). The order also directed the White House to work with Congress so Americans could benefit from access to appropriate full-spectrum CBD products while restricting products that pose serious health risks. It further instructed HHS to develop research methods and models using real-world evidence to improve access to hemp-derived cannabinoid products in accordance with federal law and to help inform standards of care.

On April 23, 2026, DOJ issued a press release announcing a final order placing FDA-approved marijuana products and marijuana products regulated by qualifying state medical cannabis licenses into Schedule III of the Controlled Substances Act. DOJ also announced steps DEA had taken to expedite a separate administrative hearing process to consider broader marijuana rescheduling from Schedule I to Schedule III. Learn more about what this means for patients and caregivers here.

On April 28, 2026, Acting Attorney General Blanche published final AG Order No. 6754-2026, titled Schedules of Controlled Substances: Rescheduling of Food and Drug Administration-Approved Products Containing Marijuana from Schedule I to Schedule III; Corresponding Change to Permit Requirements. The order placed FDA-approved marijuana products and marijuana products regulated by qualifying state medical cannabis licenses into Schedule III and created a federal registration structure for state-licensed medical cannabis manufacturers, distributors, and dispensers.

The Attorney General relied on authority granted by Congress under 21 U.S.C. § 811(d), which allows scheduling actions necessary for the United States to meet its obligations under the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances. In December 2020, the Commission on Narcotic Drugs voted to reclassify cannabis in recognition of its medical value, following a recommendation from the World Health Organization. The International Narcotics Control Board’s 2022 annual report advised that countries operating medical cannabis access programs must follow the control measures required by Article 28 of the Single Convention, including licensing and controlling cannabis production for medical use, establishing a national cannabis agency, providing estimates of national medical cannabis requirements, and ensuring that medicinal cannabinoids are used according to evidence on safety and effectiveness and under medical supervision.

AG Order No. 6754-2026 asserted federal authority to place qualifying medical cannabis products into Schedule III and to establish a registration system that relies in part on existing state medical cannabis licensing systems. By bringing certain state-regulated medical cannabis products within Schedule III while creating a federal oversight pathway, the order attempts to reconcile federal cannabis scheduling with U.S. treaty obligations and state medical cannabis programs.

The April 28, 2026, Federal Register publication included three related actions. DEA withdrew the earlier August 29, 2024, Notice of Hearing on Proposed Rulemaking in Docket No. DEA-1362 through Attorney General Order No. 6752-2026. DEA also issued a new Notice of Hearing on Proposed Rulemaking in Docket No. DEA-1362 through Attorney General Order No. 6753-2026. Under that notice, every “interested person,” as defined in 21 CFR 1300.01(b), who wished to participate in the hearing had to file a written notice of intention to participate by email to [email protected] by 11:59 p.m. Eastern Time on May 24, 2026. The third action was the DOJ final order, AG Order No. 6754-2026. DOJ stated in its press release that the new administrative hearing on broader marijuana rescheduling would begin on June 29, 2026, and conclude on July 15, 2026.

Several implementation dates followed the April 2026 actions. The deadline for interested-party submissions to the new notice was May 28, 2026. Medical cannabis businesses seeking DEA registration faced a June 26, 2026, deadline. The broader rescheduling hearing was scheduled to begin on June 29, 2026, with a stated conclusion date of July 15, 2026. Separately, changes to federal hemp law are expected to take effect on November 12, 2026, which may affect some hemp-derived cannabinoid products used by patients. Those hemp changes are tied to the federal hemp definition at 7 U.S.C. § 1639o and are distinct from the DOJ and DEA medical cannabis order. DEA’s six-month target for approving medical cannabis registrations runs to December 26, 2026.

2022: President Biden requested Health and Human Services (HHS) and the Department of Justice (DOJ) to revisit the scheduling of cannabis under the Controlled Substances Act (CSA) (ASA's Memo to HHS/FDA on their approach to 8 Factor Analysis and 5 Elements for CAMU)

2023: CRS Issues Guidance on Scheduling Options for Congress, including an option for a new schedule 

2023:  FDA publicly states it cannot regulate CBD within current authorities for dietary supplements and conventional foods (see the Cholestin/Pharmanex precedent under 21 U.S.C. § 321(ff)(3)).

2023: DEA letters clarify that THC-O and certain delta‑8 products are not protected under the 2018 Farm Bill; courts continue to limit states from outright prohibiting/regulating some hemp-derived products.

January 2024: HHS Report to DEA on Scheduling Recommendation is Released 

May 2024: DOJ/DEA publishes a Notice of Proposed Rulemaking (NPRM) to move marijuana from Schedule I to Schedule III, opening public comment (89 Fed. Reg. 44597). (ASA's Public Comments to DEA on the Proposed Rulemaking )

July 2024: ASA Press Briefing on Rescheduling

August 2024: The DEA Administrator issues a General Notice of Hearing (GNoH) determining that in‑person Administrative Law Judge (ALJ) proceedings are appropriate and calls for impacted individuals to request to testify, with hearings set to begin December 2, 2024 (89 Fed. Reg. 70148

October 2024: Administrative Law Judge John J. Mulrooney responds to the DEA Witness list, adjusts the Dec. 2 date to a preliminary hearing, and orders selected witnesses to establish standing. (ASA’s Blog on hearing postponement: Recalibrating for Rescheduled Rescheduling )

November 2024: Administrative Law Judge John J. Mulrooney releases the final witness list  (ASA’s breakdown of Judge Mulrooney’s determination of standing and participation of witnesses)

 January 2025:  Village Farms International, Hemp for Victory filed a “Motion To Reconsider” earlier motions the group filed concerning the DEA’s role in the hearings and requested that if the ALJ did not grant their motion, that he postpone the hearing for the group to file an immediate interlocutory appeal.   

January 2025: Judge John J. Mulrooney denies Village Farms International and Hemp for Victory’s “Motion To Reconsider” and postpones hearings for groups to file an immediate interlocutory appeal.    

July 2025: DEA/Movants update the court on the progress of the appeal

July 2025: Senate confirms new DEA administrator, Terry Cole, who has said he will make rescheduling proceedings a top priority

July 2025: Judge Mulrooney announced his retirement 

December 2025: President Trump signs an Executive Order calling on the DOJ to finish the rescheduling process

April 28, 2026:  The three actions highlighted in the DOJ’s April 23^rd press release were published in the Federal Register. Learn more about what this means for patients and caregivers here! 

1. DEA: Withdrawal of 08/29/24 Notice of Hearing on Proposed Rulemaking (NHPRM): Docket No. DEA-1362; Attorney General Order No. 6752-2026 

2. DEA: The new Notice of Hearing on Proposed Rulemaking (NHPRM): Docket No. DEA-1362; Attorney General Order No. 6753-2026: "Every 'interested person' as defined in 21 CFR 1300.01(b) as 'any person adversely affected or aggrieved by any rule or proposed rule issuable' who wishes to participate in the hearing shall file a written notice of intention to participate. Electronic filing may be made as a PDF attachment via email to the Drug Enforcement Administration, Attn: Administrator at [email protected], on or before 11:59 p.m. Eastern Time on May 24, 2026.

3. DOJ: Schedules of Controlled Substances: Rescheduling of Food and Drug Administration Approved Products Containing Marijuana and Products Containing Marijuana Subject to a Qualifying State-issued License from Schedule I to Schedule III; Corresponding Change to Permit Requirements final order: AG Order No. 6754-2026

May 28, 2026: Deadline for "interested party" submissions to NHPRM 

June 26, 2026: Deadline for medical cannabis businesses to register with the DEA 

June 29, 2026: New Administrative hearing set to begin for broader marijuana rescheduling.

July 15, 2026: The new administrative hearing will conclude, according to the DOJ Press Release

November 12, 2026: Changes to federal hemp law are expected to take effect, which may affect some hemp-derived cannabinoid products. This is separate from the DOJ/DEA medical cannabis order but may affect patients using full-spectrum CBD or other hemp-derived products. 7 U.S.C. § 1639o — Hemp Definition

December 26, 2026: 6-month target for DEA to approve medical cannabis registrations

Federal marijuana laws remain harsh. People found guilty of federal drug violations can face long mandatory sentences, loss of property, and other consequences that can be felt for life. Despite widespread medical use by millions of Americans, federal law still considers cannabis a dangerous illegal drug with no acceptable medicinal value. Medical issues cannot be used as a defense in federal court. However, defense attorneys should attempt to raise the issue whenever possible during trial, as it may be considered a mitigating factor at sentencing. Federal law applies throughout Washington, D.C. and the United States, not just on federal property.

The penalties for federal marijuana offenses are determined by sentencing guidelines enacted by the United States Sentencing Commission and mandatory sentencing laws passed by Congress. The Sentencing Commission was created in 1987 to combat sentencing disparities across jurisdictions. The current mandatory minimum sentences for marijuana offenses were enacted in a 1986 drug bill. Federal sentencing guidelines take into account not only the amount of cannabis involved in the arrest but also the past convictions of the accused. Not all cannabis convictions require jail time under federal sentencing guidelines, but all are eligible for imprisonment. Any medical cannabis patient convicted and sentenced to federal prison will serve a minimum of 85% of that sentence.

In United States v. Booker (2005), a Supreme Court decision from January 2005, the Court ruled that the federal sentencing guidelines (as outlined above) are advisory to judges, not mandatory. Under current sentencing guidelines, the larger the amount of cannabis involved, the more likely the person is to be sentenced to imprisonment. Even for a defendant with multiple prior convictions, being charged with low-level offenses may result in probation for the entire sentence, ranging from one to twelve months, with no prison time required. Possession of over 1 kg of cannabis with no prior convictions carries a sentence of six to twelve months with a possibility of probation and alternative sentencing. Over 2.5 kg with no criminal record carries a sentence of at least six months in prison; with multiple prior convictions, the recommended sentence might be up to two to three years, with no chance of probation.

In addition to the sentencing guidelines, there are statutory mandatory minimum sentences enacted by Congress that require judges to impose prison time for certain marijuana offenses. These mandatory minimum sentences remain in effect after United States v. Booker. There is a five-year mandatory minimum for cultivation of 100 plants or possession of 100kgs, and there is a 10-year mandatory minimum if the defendant also has a prior felony drug conviction. Cultivation or possession of 1000kg or 1000 plants triggers a 10-year mandatory minimum, with a 20-year mandatory sentence if the defendant has one prior felony drug conviction, and a life sentence with two prior felony drug convictions.

Conant v McCaffery (2000): The government was enjoined by the U.S. District Court in San Francisco from punishing physicians or taking their DEA licenses for recommending medical use of cannabis. The ruling states that physicians have a First Amendment right to make recommendations, but may not aid or abet patients in actually obtaining marijuana. Click to view the ruling.

U.S. v. Oakland Cannabis Buyers Cooperative (2001): The U.S. Supreme Court issued a ruling that was later used by a federal district court in California to issue a permanent injunction against OCBC, prohibiting it from distributing medical cannabis. In the opinion rendered on May 14, 2001, the U.S. Supreme Court dealt a blow to medical cannabis patients by declaring that a person in federal court may not argue that the distribution of cannabis to patients is a medical necessity. The Court was very adamant in its opinion that federal law still criminalizes the use and distribution of medical cannabis. It specifically left open several questions, including constitutional limitations on federal authority, which will be litigated in OCBC's pending appeal in the Ninth Circuit. This ruling applied to five other medical cannabis clubs, of which at least one has filed additional appeals not yet heard. Click to view the ruling.

Conant v Walters (2002): The Ninth Circuit Court of Appeals held that the federal government could not punish, or threaten to punish, a doctor merely for telling a patient that his or her use of marijuana for medical purposes is proper. However, because it remains illegal for a doctor to "aid and abet" a patient to obtain marijuana or conspire with him or her to do so, the court drew the line between protected First Amendment speech and prohibited conduct as follows -- A physician may discuss the pros and cons of medical marijuana with his or her patient, and issue a written or oral recommendation to use marijuana within a bona fide doctor-patient relationship without fear of legal reprisal. And this is so, regardless of whether s/he anticipates that the patient will, in turn, use this recommendation to obtain marijuana in violation of federal law. On the other hand, the physician may not actually prescribe or dispense marijuana to a patient, or recommend it with the specific intent that the patient will use the recommendation like a prescription to obtain marijuana. There have been no such criminal or administrative proceedings against doctors to date. Click to view the ruling.

US v Rosenthal (2002)

Medical marijuana provider and prolific author Ed Rosenthal had his Harm Reduction Center raided by federal agents in February 2002. Despite being "immuniz­ed" in 1998 by the city of Oakland for violating the Controlled Substances Act under federal law, Rosenthal was denied a medical defense during his prosecution and was found guilty. After the February 2003 trial, several jurors discovered that evidence had been withheld and subsequently denounced their verdict. In June 2003, amid a highly charged political climate, U.S. District Court Judge Charles Breyer sentenced Rosenthal to a single day in prison. Both sides quickly filed appeals, with the government challenging the one-day sentence and Rosenthal claiming an unfair trial and an unlawful grand jury indictment.

Rosenthal's opening brief on appeal raised eight grounds for reversal, including: (1) a Commerce Clause challenge, (2) statutory immunity due to his deputization as an Oakland official, (3) violation of his due process rights because of the trial court's exclusion of his entrapment-by-estoppel defense, (4) misconduct before the grand jury by the federal prosecutor, (5) juror misconduct in eliciting outside legal advice, and (6) instructional error. On April 26, 2006, the federal Ninth Circuit Court of Appeals issued a ruling overturning Rosenthal's conviction due to jury misconduct. The Court’s ruling, which was amended on July 19, 2006, failed to adequately address the issues of immunity and entrapment by estoppel.

Despite no compelling reason to re-try Rosenthal, the government convened a federal grand jury in 2006 to seek an indictment. Although multiple witnesses refused to cooperate with the grand jury, the government filed its superseding indictment in October 2006, which included additional tax evasion and money laundering charges. Based on the vindictive nature of the prosecution, ASA filed a motion to dismiss in February 2007 on behalf of Rosenthal. In an unusual ruling on March 14, 2007, Judge Breyer found at least the appearance of vindictiveness by the federal government and dismissed the tax and money-laundering charges against Rosenthal.

Nevertheless, the government retried Rosenthal on the remaining marijuana charges.He was once again convicted, and he was again sentenced to a one-day time-served.

• Motion to dismiss on Commerce Clause grounds (filed 1/6/2002)
• Motion to dismiss on due process grounds(filed 1/6/2002)
• Motion to dismiss based on immunity(filed 1/6/2002)
• Rosenthal's opening brief (filed 11/23/03)
• Rosenthal's reply brief raising the same legal issues (filed 7/2/04)
• Ninth Circuit ruling reversing Rosenthal's conviction (filed 4/26/06; amended 7/19/06)
• Motion to dismiss based on vindictive prosecution (filed 2/20/07)
• Reply in support of motion to dismiss (filed 3/1/07)
• District Court ruling dismissing charges based on vindictive prosecution (filed 3/14/07)

Gonzales v. Angel Raich (2005): On June 6, 2005, the U.S. Supreme Court ruled that federal law enforcement officials can prosecute medical marijuana patients, even if they grew their own medicine and even if they reside in a state where medical marijuana use is protected under state law. The decision does not say that the laws of California (or any other medical marijuana state) are unconstitutional; it does not invalidate them in any way. Also, it does not require federal officials to prosecute patients. Decisions about prosecution are still left to the discretion of the federal government. The Court indicated that Congress and the Food and Drug Administration should work to resolve this issue. The U.S. Supreme Court decision stems from a lawsuit filed on October 9, 2002, by medical marijuana patients Angel Raich and Diane Monson. The lawsuit moved for a preliminary injunction against then-Attorney General John Ashcroft and then-DEA Administrator Asa Hutchinson. The case reached the Supreme Court after Ashcroft appealed the December 2003 federal Ninth Circuit Court of Appeals decision that ruled in favor of Raich. Click to view the U.S. Supreme Court ruling.

CA DMV (2005)

The DMV is another entity that has been found to unfairly discriminate against patients, and ASA is taking a proactive stance to counter this practice. Amanda Whittemore is a Sacramento patient who, after a routine traffic stop, was referred to the DMV by the police officer who stopped her. She was quickly notified of a requirement to retake her driving test due to "drug addiction," though no evidence of addiction existed. After agreeing to take her driving test again, the DMV failed her and revoked her license. ASA appealed the revocation, taking the DMV to task for its arbitrary and capricious action against Amanda and other medical marijuana patients. In January 2006, Amanda's license was reinstated as a result of the appeal.

• Whittemore letter to the DMV appealing the requirement to retest due to an assumption of "drug addiction" based on patient status (filed 4/7/05)
• Whittemore letter to the DMV requesting comprehensive discovery (filed 8/17/05)

CHP (2005)

Perhaps the biggest victory for medical marijuana patients and advocates since the passage of the Compassionate Use Act, is the policy change made by the California Highway Patrol (CHP) on August 22, 2005, as a result of ASA's lawsuit challenging its illegal policy of mandatory seizure of patient medicine

On February 15, 2005, ASA filed a group lawsuit against the CHP on behalf of six medical marijuana patients and caregivers. The CHP is by far the worst violator of the Compassionate Use Act and SB 420, accounting for more than one-quarter of all patient arrests and seizures in California reported to ASA. To expedite the lawsuit and increase pressure on the CHP to change its unlawful policy, ASA filed a motion for a preliminary injunction on July 13, 2005.

As a result of ASA's lawsuit, the CHP adopted a new policy on August 22, 2005, discouraging CHP officers from confiscating medicine from patients and caregivers, and providing officers with instructions on how to verify valid medical marijuana documentation. A two-page memo issued to all CHP Command Centers on the same day clearly defines for CHP personnel what the new policy means, including this example scenario of a medical marijuana traffic stop:

An officer initiates an enforcement contact on a vehicle at 0200 hours for a mechanical violation and observers (sic) a small baggie of what appears to be marijuana sitting on the seat next to the driver. The driver claims 11352.7 (sic) H&S and presents a note from a physician recommending medical marijuana. The officer should contact the local communication/dispatch center to attempt to verify the validity of the claim. If the claim is valid, and the individual is within the state/local limit, no enforcement action should be initiated regarding the medical marijuana.

On October 6, 2006, the CHP and the Governor signed a settlement agreement, entering into a four-year “consent decree,” thereby ensuring the enforcement of the new CHP policy. In addition, ASA was awarded $75,000 in fees for its work on the case.

• The original CHP policy
• ASA's civil lawsuit complaint against the CHP (filed 2/15/05)
• ASA's motion for preliminary injunction against the CHP (filed 7/13/05)
• The revised CHP policy (initiated on 8/22/05)
• CHP memo issued to all command centers regarding revised policy (issued 8/22/05)
• CHP Settlement agreement – consent decree & $75,000 in attorneys' fees (10/6/06)
• For more info on the CHP case

Butte County (2007)

Patients who are unable to cultivate medical marijuana themselves and cannot find a caregiver to do it for them often turn to private patient collectives as a way to obtain their medicine. Collectives are explicitly allowed under state law and must be accommodated by local law enforcement. In the fall of 2005, the Butte County Sheriff conducted several raids on private patient collectives. One such raid occurred at the home of David Williams, a member of a 7-patient collective who lives near Paradise, California. Williams was forced to uproot and destroy more than two dozen plants just prior to harvest.

ASA has filed a lawsuit on behalf of Williams and the other members of his collective, challenging Butte County's policy of prohibiting private patient collectives that do not require every member to physically cultivate the marijuana. On September 6, 2007, the Superior Court ruled in ASA’s favor and denied Butte County’s demurrer. On July 1, 2009, the Court of Appeal for the Third Appellate District issued a published decision affirming the Superior Court, ruling in Williams' favor in all respects.

• ASA's amended civil suit complaint against Butte County (filed 4/5/07)
• ASA's opposition to demurrer (filed 5/24/07)
• The Superior Court's ruling (filed 9/6/07)
• ASA's opposition to Butte writ (filed 12/14/07)
• Butte Appellate decision (filed 7/1/09)

Michael Lee (2007)

San Leandro medical marijuana patient Michael Lee had his 99 marijuana plants seized from him in a 2000 raid by the Contra Costa Sheriff at his previous residence in Richmond. After charges against him were dismissed, Lee filed a motion for the return of property. The Contra Costa Superior Court denied the motion on the grounds that the case was still under investigation and the statute of limitations had not yet run. After waiting for the three-year statute of limitations to run out, Lee, with the assistance of ASA, filed another motion for the return of property in August 2004. At his hearing, Lee discovered that police had destroyed his property without his consent. The judge denied the motion for return of property, but made comments that were extremely helpful for taking Lee's case to federal court to argue Fifth and Fourteenth Amendment (due process) violations. In August 2005, ASA filed a lawsuit in federal court on behalf of Lee to challenge the illegal destruction of his property. The case settled in March 2007 with an agreement that Contra Costa County would compensate Lee for $8,000.00, the approximate value of the property.

• Lee's civil lawsuit complaint challenging local law enforcement violation of the Fifth and Fourteenth Amendments (filed 8/30/05)
• Settlement Agreement (4/3/2007)

Felix Kha v Garden Grove (2005): Garden Grove patient Felix Kha was pulled over by local police on June 10, 2005, for not making a full stop. The police searched Kha’s vehicle without consent and found his approximately 8 grams of medical marijuana. Kha proceeded to show the GGPD officers his doctor’s recommendation, which was met with the response that the then-recent [U.S. Supreme Court] Raich decision made medical marijuana illegal. Kha’s case was dismissed in August 2005, and he immediately asked for the return of his medical marijuana. The next day, Kha obtained a court order for the return of property from the Orange County Superior Court. However, when Kha attempted to get his 8 grams back from GGPD, they refused. ASA intervened and wrote two letters to the City of Garden Grove on Kha’s behalf, demanding that it relinquish property that was rightfully his. ASA’s final letter to the City of Garden Grove threatened contempt proceedings.

On October 31, 2005, in an unprecedented move, the City of Garden Grove appealed the Orange County Superior Court ruling to return Kha’s marijuana, filing in the Court of Appeal for the Fourth Appellate District. Then on January 7, 2006, ASA filed an informal opposition on behalf of Kha, who is the real party in interest. Of particular note, California Attorney General (AG) Bill Lockyer filed an amicus (friend of the court) brief on November 1, 2006, in support of Kha and the return of his property. On December 19, 2006, the California Police Chiefs Association filed an amicus brief in support of the City of Garden Grove.

In a momentous ruling, on November 28, 2007, the Fourth Appellate District issued a unanimous 41-page published decision vindicating the rights of medical marijuana patients in no uncertain terms. On March 19, 2008, the California Supreme Court denied the City of Garden Grove's Petition for Review and a request for depublication.

• ASA letter to City of Garden Grove threatening contempt (sent 10/20/05)
• Garden Grove Appeal of Orange County Superior Court Order for Return of Property (filed 10/31/05)
• ASA opposition to Garden Grove Appeal (filed 1/7/06)
• Garden Grove reply (filed 1/19/06)
• Attorney General amicus brief in support of Kha (filed 11/1/06)
• California Police Chiefs Association (CPCA) amicus brief in support of Garden Grove (filed 12/19/06)
• ASA opposition to CPCA amicus brief (filed 1/3/07)
• Fourth Appellate District ruling (filed 11/28/07)
• Garden Grove petition for review (filed 1/7/08)
• ASA answer to petition for review (filed 1/28/08)
• Law enforcement requests to grant the petition for review (filed 2/8/08)
• Supreme Court order denying review (filed 3/19/08)

County of San Diego v. San Diego NORML (2006): ASA has successfully intervened in a civil lawsuit that the County of San Diego filed against the California Department of Health Services (DHS) on February 1, 2006, in San Diego Superior Court. Jointly with the ACLU Drug Reform Law Project (DLRP) and the Drug Policy Alliance (DPA), and representing five patients, a physician, and the Wo/Men's Alliance for Medical Marijuana (WAMM), ASA fought on behalf of patients' rights across the state. Specifically, ASA argued that federal law does not preempt state law, and that the County of San Diego must abide by the Compassionate Use Act and SB 420.

San Diego County Supervisors claim to have filed the lawsuit in response to a lawsuit threatened by San Diego NORML over the County's objection to implementing the state's medical marijuana ID card program. Therefore, the case is called San Diego County v. San Diego NORML. On July 7, 2006, ASA, DLRP, and DPA filed a motion to intervene, which was granted on August 4. Then, on September 1, the parties filed their motion for summary judgment on the pleadings. Attorneys for ASA and the ACLU argued the case in San Diego Superior Court on November 16, 2006, and secured a tremendous victory for patients in California. On December 6, 2006, Judge William R. Nevitt Jr. confirmed the validity of California's medical marijuana law by ruling on the side of patients and rejecting the counties’ challenge. Despite a ruling clearly showing that federal law does not preempt state law, the County of San Diego appealed the Superior Court decision on February 22, 2007. ASA will continue to fight this lawsuit and is confident that patients will ultimately prevail and that San Diego will be forced to abide by and implement California's medical marijuana law.

The intervening defendants included Wendy Christakes, Pamela Sakuda (now deceased), William Britt, and Yvonne Westbrook, Californians who use physician-recommended marijuana to treat medical conditions and their side-effects, including chronic pain and sciatica, multiple sclerosis, rectal cancer, epilepsy, and post-polio syndrome. Also represented was Sakuda’s spouse and caregiver, Norbert Litzinger, and Dr. Stephen O’Brien, a physician who specializes in HIV/AIDS treatment in Oakland, California, and believes that many of his seriously ill patients benefit from the medical use of marijuana. In addition to being co-counsel, ASA was also an intervening defendant on behalf of our membership, with over 30,000 medical marijuana patients, caregivers, and physicians residing in California. WAMM, another intervening defendant, is a medical marijuana collective and hospice located in Santa Cruz, California, whose 250 members, the majority of whom are terminally ill, use marijuana to treat a range of conditions.

The Counties of San Diego and San Bernardino have appealed the superior court ruling to the Court of Appeals for the Fourth Appellate District. The County of Merced, by contrast, did not appeal the ruling and instead implemented the identification card program.

On July 31, 2008, the Court of Appeal for the Fourth Appellate District, Division One issued a published decision denying the Counties' position. On October 16, 2008, the California Supreme Court denied the Counties' Petition for Review, and the United States Supreme Court denied the Counties' cert. petition on May 26, 2009, rendering the case final for all purposes.

• Civil suit complaint filed by the County of San Diego against the California Department of Health Services (filed 2/1/06)
• Demurrer by California Attorney General Bill Lockyer (filed 3/21/06)
• Demurrer by San Diego NORML (filed 3/17/06)
• Motion to intervene by ASA, DLRP, and DPA (filed 7/7/06)
• Motion for judgment on the pleadings by ASA, DLRP, and DPA (filed 9/1/06)
• Opposition by ASA, DLRP, and DPA (filed 10/3/06)
• Reply by ASA, DLRP, and DPA (filed 11/3/06)
• Superior Court ruling rejecting San Diego’s challenge (filed 12/6/06)
• Refer to ASA's campaign on California's ID Card Program
• ASA's Brief on Appeal (filed 12/17/07)
• Published decision (published 7/31/08)

 McClary-Raich v. Gonzales (2007): The Ninth Circuit Court of Appeals put what appears to be the final touches on the Raich case on March 14, 2007. In McClary-Raich v. Gonzales, the court addressed the outstanding issues remaining after the Supreme Court's pronouncement that the federal government has the authority under the Commerce Clause to regulate medical marijuana. In particular, the Ninth Circuit held that McClary-Raich: (1) could not obtain a preliminary injunction to bar enforcement of the Controlled Substances Act (CSA) based on common law medical necessity, although she appeared to satisfy the factual predicate for such claim; (2) application of the CSA to medical marijuana cultivators and users did not violate substantive due process guarantees; and (3) the Tenth Amendment does not bar enforcement of the CSA.

Although the outcome was not positive, there was plenty of language in the decision that bodes well for the future of medical marijuana. In particular, with respect to the claim that there is a fundamental liberty interest to use marijuana medicinally, deserving of constitutional protection, the court stated: "We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'" The court continued: "For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years, eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected."

Also, although the court found that McClary-Raich could not affirmatively invoke a common-law medical-necessity defense to obtain an injunction in a civil suit, it did not foreclose the possibility that a criminal defendant might do so. Click to view the ruling.