Cannabis: Will We or Won’t We? – The Deni Law Group LLC

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Cannabis: Will We or Won’t We?

Anyone who follows the local news has seen that the movement to legalize marijuana in New Jersey has been on a roller-coaster ride.  We were led to believe that New Jersey would join the nine States (ten if you add Washington D.C.) with legalized recreational or “adult use” marijuana.   But efforts to advance comprehensive legislation decriminalizing marijuana possession and governing the growing cannabis industry failed and the adult use bill was pulled before it even went to a full vote.  Unless there is a push by legislators to resurrect discussion on the bill, it is expected a referendum will be added to the ballot during the 2020 elections asking simply, “Do you want marijuana to be legalized?”  The result of that vote would then determine if the efforts to legalize would move forward.

Since 2010, New Jersey (along with the majority of the States in the US now) has had a medical marijuana program in place under the Compassionate Use of Medical Marijuana Act (CUMA) and in July of this year (2019), that program was significantly expanded, with additional locations added and a shift in the production and types of licenses available to growers and dispensers.  But absent admission to the medical marijuana program (which is a process to be discussed in its own blog), what does this all mean to the everyday person in New Jersey and where so we stand?  Here are the answers to some frequently asked questions:

What is Cannabis vs. Marijuana?

I like to think of it this way:  There are tomatoes and there are a lot of different kinds of tomatoes (roma, grape, beefsteak, etc).  Each type of tomato has a lot in common, but one variety may have a taste or texture better suited for one purpose over another purpose.

Cannabis is the general category of the plant species and marijuana and hemp are a type of cannabis.  Marijuana contains a higher level of THC (the substance that makes you feel “high”) in conjunction with CBD; whereas Hemp contains a higher level of CBD and no (or a very low level of) THC.  The plants can be grown or processed to alter the ratio of THC to CBD and to maximize or minimize the amount and trait of other substances or properties of the plant.

Is the use of marijuana “illegal”?

Yes.  Marijuana remains a Schedule I prohibited controlled substance.  Federal Law has not changed and until it does, even in States where there is legalization, Federal law enforcement officials could, theoretically, act.  This has not happened in recent years because of the previously issued Cole Memo under which no Federal funds were allocated in the Federal budget to the enforcement of marijuana possession/distribution/cultivation.  So long as the actor/person/business was in compliance with a valid State Law, there was some assurance that they were not subject to prosecution.  But the Cole Memo has since been rescinded under the current administration and there is no level of assurance to individuals or businesses dealing in marijuana.

Then, why do I see CBD products in stores and advertised?

Hemp has been removed from Schedule I and is no longer a Schedule I prohibited controlled substance.  In addition, the 2018 Federal Farm Bill carved out an exception for Hemp-derived CBD oil and products.  The Food and Drug Administration approved the first CBD based product in September of 2018.  Research and production with FDA approval of Hemp-derived CBD products will continue to grow as the market demands; however be careful because the majority of current CBD products on the market have not gone through the rigors of FDA approval nor are they labeled as FDA approved products must be.  The research simply isn’t there in the US to verify what CBD oil can or cannot claim to do.

So if I get stopped by police and I have marijuana in my possession, what happens?

It is illegal in New Jersey and (absent holding a valid medical marijuana card), you will be written a ticket for Possession of Marijuana pursuant to 2C:35-10(a) of the Criminal Code of New Jersey, a disorderly persons offense.

However, there are several options your attorney has to assist you in court.

There are so many areas of law impacted by this national and local conversation around Cannabis and Marijuana (banking, medical, employment, landlord-tenant, zoning, etc.), while the answers may be different on any given day since the law is changing quickly, it is imperative to have an attorney who knows what the current state of the law is in New Jersey.

Allison M. Roberts, Esq., is a partner at The Deni Law Group.  Her practice is comprised of family law and criminal defense clients.  She has served as an assistant prosecutor and is currently the Co-Chair of the Hunterdon County Cannabis Committee.

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