What Will Happen to Office Drug Testing Post-Legalization? Cannabis Attorneys Weigh In

This article appeared on Leafly.com on May 14, 2016 about Gleam Law’s Reddit AMA on cannabis law. The original article was written by Rebecca Kelley. 

A group of cannabis attorneys and industry advocates participated in a recent Reddit AMA, or “Ask Me Anything,” in which notable figures or persons of interest make themselves available to answer questions submitted by Reddit users. The lawyers weighed in on a variety of topics, from boating with blunts to post-legalization workplace drug testing.

Here’s a recap of the AMA featuring the following participants from Gleam Law, which practices in Washington and Oregon:

• Neil Juneja, attorney and founder of Gleam Law who focuses on trademark and patent law in cannabis
• Representative Roger Goodman, a five-term Washington state representative and a long-time drug policy reform advocate
• Mike Herron, managing attorney of the Oregon Gleam Law office and its primary corporate attorney
• Rachel Kurtz, drug policy reform advocate and policy wonk
• Ammon Ford, Gleam Law clerk who started the Cannabis Law Society (CLAW) at Seattle University School of Law

What does the future look like for office drug testing in the states where it has been legalized? Can people looking to get a job still be penalized for using a recreational and legal substance?

Gleam Law (Neil): While it is federally illegal, an employer can still discriminate against cannabis users, even if it is permitted by state law.

What do you think the most difficult obstacle will be in making cannabis into a commodity that is comparable with alcohol in terms of ease of distribution and regulation?

Gleam Law (Neil): The current issue is that the agencies are trying to adapt alcohol regulation to cannabis. It is not an easy application for numerous reasons. Unlike alcohol, which is based upon one (-OH) group with predictable effects, we don’t understand how or why different strains and different administration methods have different effects. Commodification is much more difficult with such a wide variation in the product/medicine.

Do you see federal legalization for recreational or medical purposes on the horizon? If so what sort of timeline for it happening do you approximate?

Gleam Law (Neil): It is definitely coming. It will be determined by the next president. We have an inter-office betting pool on when it will occur. There are few bets on less than 12 months.

How does patenting strains work? Is that a possibility, or can you copyright a name for your strain?

Gleam Law (Neil): Technically it is possible. Plant patents have two main requirements: Novel and Non-obvious. The hurdle to overcome here is the obviousness rejection. Simply crossing two known strains is obvious. One would want to find a variation that is substantially different and not an obvious variation to already existing strains.

I’ve heard anecdotally that states are struggling with marijuana from the legal market being diverted to the black market, where it can be sold while avoiding taxes or regulation. Do you actually see this a lot in your business, and do you think it is a major unaddressed problem with legalization?

Gleam Law (Mike): Diversion into the black market is always a concern for legitimate cannabis business. What gets talked about less is the concern for diversion into the legal market from the black market. If you are going to break the law either way, which makes more sense: produce at a lower cost in an unregulated/unlicensed grow, and then try to sell for much higher prices into the regulated market, or produce at a much higher cost on the regulated market and sell at a much lower cost on the black market?

But to say either type of diversion is unaddressed is a vast understatement. The Department of Justice issued the Cole Memorandum in 2014, outlining the key factors any state’s regulatory system needs to address in order for the DOJ to take a less “hands on” approach to enforcing federal drug laws in that state as they apply to marijuana. Oregon’s regulatory framework was created with these factors in mind. Seed-to-sale tracking is an important element of that system, but it is not the be-all, end-all of anti-diversion measures. At some point a self-policing element will enter the industry and those who are set on operating a legitimate, law abiding business will have a lot of incentive to ensure their competition is playing by the same rules. Prices will also continue to drop in the regulated market, placing additional competitive pressure on black market operations, but we have to give these things time to work.

Neil: In WA and OR, there are traceability systems in place to track the plant from seed-to-sale. This mitigates some of the risks. My worry is that if we overtax and over-regulate it, closet grows will persist and undermine the new regulatory system. To use the alcohol system as an analogy, we do not see basement distilleries causing any major issues.

In addition, legal regulated marijuana provides some benefits that black market does not – proper testing, proper labeling showing cannabinoidcontent, proof that the product is made without harmful chemicals, and infused products created in sanitary conditions, to name a few.

There was a study recently done by some group on how hard it is to determine how much THC is in one’s blood stream and how the effects of the THC vary from person to person. In your opinion, does this hinder or help the [cannabis] community, and what would the laws on the amounts look like in the future?

Gleam Law (Ammon): The difficulty of determining the THC content in the blood is coupled with the difficulty of determining how much THC renders the user “high,” for different people it is different.

This comes into play most in drugged driving cases. Here in Washington, it is illegal to drive while under the influence or affected by an intoxicating substance. Statutorily, this is satisfied if the driver has a blood THC content of 5 nanograms per milliliter or greater. In order to determine this, the police need to take a blood sample at the station and then present that evidence in court.

These can be very difficult to beat, but we know trial lawyers who have successfully beat these cases by relying on the weak science. 5ng in the blood doesn’t tell you when the driver smoked. It doesn’t tell you whether they were high while driving. it doesn’t tell you that they were impaired or affected by the drug. If there was no affect by the drug, then arguably the act was not illegal.

What does this mean the future of the industry? It means that the science will continue to get better and law enforcement will continue to get smarter. Hopefully, as everyone gets smarter we will also get safer.

Can I take a [cannabis] vape pen on a plane from CA to NV? I have a CA prescription. I don’t plan on bringing it home with me on the return flight. Just wondering if it [is] ok to take with me on the flight from CA or will law enforcement be waiting for me when I land in NV.

Gleam Law (Roger): You can certainly take a vape pen on a flight – but only WITHOUT the cannabis oil cartridge. Transporting cannabis in any form across state lines, as well as in airspace, is a federal crime. It is not likely that you will be federally prosecuted, especially for traveling between two cannabis-friendly states, but it’s still illegal at this point. Your vape pen, if detected, would probably just be confiscated – but there’s no guarantee…

Ammon: The vape pen itself is not illegal to transport across state lines because vape pens are not only used for cannabis, they’re also used for tobacco products. If it were used only for cannabis then it would qualify as prohibited “paraphernalia” under the Controlled Substances Act. Your CA prescription will not apply in NV unless NV law specifically honors MMJ authorizations from other states. Since we do not currently practice in NV we cannot definitively say what NV law permits [Leafly note: Nevada does accept out-of-state medical marijuana authorizations]. The cannabis oil/wax/shatter inside it is the controlled substance that should not be transported across state lines. Doing so is a federal felony that could result in serious and long-lasting legal problems for you.

How are dosage sizes determined and is that something that accounts nationally or just regionally?

Gleam Law (Neil): It is almost arbitrary. In Washington state, the dosage is 10mg, which is about right for most users. In Oregon, the dosage was just set at 5mg, which is probably a little low. We need more research into proper dosage sizes, which is difficult with the Controlled Substances Act.

Ammon: Dosages in Washington were determined by state law. A single dose is 10mg of THC. They determined this amount with the unwitting user in mind…they don’t anybody to suffer through a Maureen Dowd incident.

There has been a lot of controversy over how they determined this dosage. Many, especially MMJ patients, take much more than 10mg. How your body processes it depends on many factors, including how often you use, your body chemistry, weight, etc. But for the average user, limiting the doses limits the risk of overconsumption.

Are you allowed to take a boat out and smoke a blunt on the water without repercussion?

Gleam Law (Roger): We have an “open container” law in Washington which disallows smoking cannabis or possessing an opened package in the passenger compartment (I sponsored that bill – sorry). However, it does NOT apply to boats, so it is permitted to use cannabis while boating – as long as law enforcement does not believe you are impaired – which can get tricky.

Neil: Also, it depends on which waterways you are on. The Coast Guard enforces federal law.

Can people with Christian beliefs fight marijuana charges? In the Bible there’s a verse, Genesis 1:29: “Then God said, “Behold, I have given you every plant yielding seed that is on the surface of all the earth, and every tree which has fruit yielding seed; it shall be food for you.” Isn’t a marijuana arrest going against 1st amendment rights?

Gleam Law (Ammon): That would be a very interesting 1st Amendment Free Exercise of Religion case. You have a constitutional right to freely practice your religion, but that right is not absolute. The government may pass laws that limit religious practice only if that law is religiously neutral, applies generally to everyone, the government has a compelling purpose/interest for imposing the law, and the restrictions of that law are as narrow as feasibly possible to achieve that governmental purpose. If they satisfy this test then their reasoning only needs to be rational, even if you and I think it is BS.

Marijuana prohibition is not specific to any religion and applies uniformly to all people. Its purpose, to protect the public health from this “dangerous” drug, is legally rational even if it is factually wrong.

For comparison, take a look at the Supreme Court Case Employment Division v. Smith, where the court held that the state could deny unemployment benefits to a person because they tested positive for smoking peyote, despite the fact that they only smoked peyote as part of a religious ceremony.

My best guess is that courts would extend this reasoning to include marijuana prohibition even if it infringed on your free exercise of religion.