The Transportation of Marijuana Within and Across State Lines
Some of the most commonly asked questions by cannabis business owners and operators, as well as consumers, involve the transportation of marijuana and the applicable laws, as well as the division of liability between the business owner and the driver.
Transportation of marijuana is highly regulated. The transportation of marijuana across state lines – that is, interstate transportation – is a federal crime, as well as a crime of both of the states whose border a transporter is traversing, even if both states have legalized the use of marijuana. This is true even if the person transporting the cannabis is an approved medical marijuana patient. While some states do honor marijuana prescriptions from other states, this reciprocity does not forgive the violation of state and federal laws prohibiting the transportation of marijuana across state lines.
On the other hand, the rules applicable to the transportation of marijuana within a state are far less clear. Companies, including cannabis companies, often engage employees, agents, or third-party transportation services to move product, including marijuana and related products, within states which have legalized the industry; business owners who employ drivers – either transporting product over long distances or acting as a local delivery service – often wonder if they can be held liable for any crimes committed or damages caused (intentional or negligent) by the driver.
Like most marijuana policy and practices, the applicable laws vary by state, so it is important to know the law in your state before engaging in potentially illegal business activities.
First and foremost, if the cannabis industry has not been legalized in a particular state, then the transportation of such product is illegal within that state.
In states that have legalized marijuana, intrastate regulations vary. For example, in Oregon, all license types include the right to transport items within their license structure (i.e. wholesalers may transport product from other licensees, etc.), which extend to business employees. However, all employees of an Oregon licensed marijuana business are required to obtain, maintain, and display a recreational marijuana worker permit. Issuance of the permit requires completion of an education program, mandates any employee engaged in transportation of cannabis complete, print, and display upon request the Cannabis Tracking System manifest documenting their trip, and also subjects employees to a variety of administrative, civil, and criminal penalties for violation of any of these, and other applicable, rules. Alternatively, as of 2016, Washington began allowing and requiring third-party transporters to obtain licenses permitting them to transport cannabis between licensed businesses throughout the state or to laboratories and testing facilities. Colorado began accepting applications for a similar licensed marijuana transporter license on January 1, 2017. However, third-party transportation services like those licensed in Colorado and Washington are not permitted under the laws of every state.
Violations of these transportation laws will be issued against the cannabis business itself, the burden and risk of which therefore falls on the business’s owners and financiers. Whether a particular state requires licensees or employees to transport or deliver marijuana – or permits third parties to do so – is important to know because it affects business owners’ rights and obligations with respect to to a variety of parties, including the state and federal government. Additionally, whether a licensee engages his own employees or third-party independent contractors to perform transportation activity on behalf of his company affects his liability should an accident occur on the road. For more information on this topic, see our blog about Employer v. Employee Liability.