On November 18, a bipartisan group of attorneys general from Arizona, Connecticut, North Dakota, and Vermont (Attorneys General) jointly submitted a letter offering commentary on the Cannabis Administration and Opportunity Act (CAOA) to congressional leaders. In it, the Attorneys General stressed the importance of establishing a “cooperative federal-state partnership” that strikes the right balance to avoid “both under and overregulation.” While acknowledging the expertise and public benefits that will be achieved through the federal government’s involvement in regulating cannabis, the Attorneys General stated that “[i]t is imperative that legislation legalizing cannabis under federal law be accompanied by a post-legalization federal regulatory regime that respects federalism while working in concert with existing state regulation.”

While the comment letter neither endorsed nor opposed the CAOA, it emphasized an “already-pressing need for cooperative federal-state oversight of products.” Moreover, the letter bluntly noted that “[i]t is clear that the rapidly expanding cannabis market should not regulate itself.” However, rather than creating new federal systems to oversee cannabis, these state attorneys general opined that the current framework can already accommodate cannabis into the work of existing federal agencies: “By using their existing expertise and organizational structure, federal agencies have the opportunity to ensure a safe product supply chain without having to build a regulatory regime from square one.”

The Attorneys General viewed the Food and Drug Administration as setting national manufacturing, testing, and marketing standards; the Environmental Protection Agency as regulating the use of pesticides in cannabis production; and the Alcohol and Tobacco Tax and Trade Bureau as implementing a licensing and taxation scheme similar to those of alcohol and tobacco for “revenue and distribution control.”

As to the states, the Attorneys General noted that they play a primary role in consumer protection and in “preventing adverse public health effects associated with cannabis consumption, including diversion to minors, drugged driving, and harms arising from false or misleading advertising.” The Attorneys General asserted, however, that federal legalization should not conflict with current state regulatory models and should allow states to impose stricter standards of control, or even continue to prohibit cannabis within their borders.

Finally, the Attorneys General offered to provide information and support to Congress as it continues to review this issue and asked that “in its work to implement a federal regulatory system focused on protecting public health and consumer safety, [will] Congress … continue to recognize the crucial role that Attorneys General play in this emerging market.”

The view that national cannabis policy should be guided by federalism — leaving regulation to the states — has been echoed by many in the industry, including Canopy Growth Corporation, the U.S. Cannabis Council, and even the Wine & Spirits Wholesalers of America. It remains to be seen whether Congress will heed these calls for limited federal intervention.

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.