MARTINSVILLE – Clowns to the left of me, jokers to the right, 

Ah, yes, we are here in Indiana watching as Michigan and Illinois sell their residents down the dream river of free marijuana tax money. Setting aside the discussion of how one can use “free” to describe money derived from taxation for another time, let’s address the morality of the marijuana legalizing bill by the 11 or 12 states that have legalized marijuana as a recreational drug.  

Here we go. And, please set aside for another time the discussion of how drugs may or may not be truly recreational. 

A critical and basic element of the definition of a moral government is that it be honest and trustworthy in its communications to the people. You know, like tell the truth. 

The simple passage of a bill garnering tax revenue from the sale of marijuana and no criminal penalties does not make marijuana “legal” in any state while the current federal government statutes and regulations remain. A governor who wants to claim a moral high road in supporting the state level legalization that pretends to legalize marijuana should also provide a truth in legislation statement. 

Such a statement should say something like “Dear Resident, we want the tax money bad enough that we will pretend to make marijuana legal in this state. But, our state action does not effectively change the federal law.” 

Here are some of the risks Illinois and Michigan created for their folks by pretending to “legalize” marijuana. 
 
1. The Child Abuse Prevention and Treatment Act (CAPTA) requires reporting when “infants affected by substance abuse.” There are custody and visitation concerns for any pediatric marijuana exposure. Colorado cases increased significantly and at a higher rate than the rest of the United States. Almost half of the patients seen in the children’s hospital in the two years after legalization had exposures from recreational marijuana, suggesting that legalization did affect the incidence of exposures.

2. Food and Nutrition Services has reaffirmed its long standing policy that a household may not utilize the SNAP medical deduction for the cost of any substance considered illegal under Federal law.

3. The FDA has determined that it is not legal to sell products that contain THC or CBD as dietary supplements. It is also not legal to sell foods containing added THC or CBD in interstate commerce.

4. SNAP benefits cannot be used to buy marijuana anywhere in the U.S., as the use of SNAP benefits is specifically restricted to the purchase of qualifying food products: SNAP benefits cannot be applied to the purchase of beer, wine, liquor, cigarettes, or tobacco, nor non-food items such as pet foods, household products and supplies, vitamins, and medicines.

5. The United States Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

6. The United States government employees, regardless of the state of residence are advised: “That legislative changes by some states and the District of Columbia do not alter Federal law, existing suitability criteria, or Executive Branch policies regarding marijuana. An individual’s disregard of Federal law pertaining to marijuana remains adjudicatively relevant to suitability determinations and relevant for disciplinary actions.” 

7. Employers who have federal funding, grants or contracts, are required to certify that they maintain a drug-free workplace. Michigan has ruled that claimants for unemployment benefits will be disqualified from receiving unemployment benefits if the claimants: (1) positive drug test for marijuana was caused by the ingestion of marijuana at the workplace; (2) discharge is based on the fact that the claimant was under the influence of marijuana at the workplace; or (3) inability to demonstrate that he or she is a qualifying patient who has been issued and possesses a  registry identification card under the Michigan Medical Marijuana Act. 

8. The U.S. Department of Housing and Urban Development (HUD) issued this memo, “Use of Marijuana in Multifamily Properties,” on the use of medical marijuana in HUD senior housing and other multifamily communities. 
The policy specifies that HUD owners must deny admission to any applicant (or member of the household) that is illegally using a controlled substance, including marijuana. In addition, owners must develop policies which “allow the termination of tenancy of any household with a member who is illegally using marijuana or whose use interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.” 

Further, owners may not establish lease provisions or policies that affirmatively permit occupancy by any member of the household who uses marijuana. Yet, The HUD notice clarifies that while the use of marijuana is illegal under federal law, HUD multifamily owner/operators have discretion on developing policies and procedures when not to evict a resident for marijuana use under certain [usually medical] conditions.

If you think the state marijuana laws are simple, check out the Michigan statutes. 

Chezem is a former Indiana appellate judge and practices law in Martinsville.