Seyfarth: Federal vs. State Approaches to Cannabis: Recent DEA Data Shows Increase In Enforcement While States Move Toward Decriminalization and Legalization


One might think that the recent uptick in the legalization of recreational marijuana usage would correlate with a decline in the arrests and seizures related to the leafy-green. According to recent data from the Drug Enforcement Administration, however, in 2021, federal law enforcement agents seized over 5.5 million marijuana plants and conducted more than 6,600 marijuana related arrests. That’s 20 percent more seizures and 25 percent more arrests than those made the previous year. Indeed, the DEA reports that it is “aggressively striving to halt the spread of cannabis cultivation in the United States,” including through its Domestic Cannabis Eradication/Suppression Program (DCE/SP), which began funding eradication programs in 1979 and has approximately 126 state and local law enforcement agency participants.

These numbers may be surprising considering that over 60% of Americans support the overall legalization of marijuana, which is the highest percentage of support ever reported in a nationwide scientific poll, according to the latest Gallup poll.

This gap in ideologies between the federal and state governments may be the result of several driving factors. For example, among the various reasons that states are increasingly leaning towards the legalization of marijuana usage is the financial prosperity it brings to state economies. In 2020 alone, legal sales of marijuana in the US bought in a record $17.5 billion, with states like Colorado and Oregon bringing in over $2.2 and $1.1 billion respectively, according to a recent Forbes article. Separately, from a social point of view, as of 2021, 49% of adults have tried marijuana in the US, which is approximately 162,678,600 Americans. By comparison, according to a Gallup poll, in 1971, only 4% of Americans tried it. Thus, adults appear to be using marijuana at much higher rates than ever before. Last, some states argue that legalization addresses the impact on African Americans, who are statistically more likely to be arrested and incarcerated for marijuana use than Caucasians, which in turn leads to higher incarceration rates and resources used, which in turn is a drain on taxpayers.

On the federal level, however, enforcement efforts persist. The history of the law surrounding this subject may offer insight. In the early 20th century, marijuana was strictly regulated under the passing of the Marihuana Tax Act of 1937. It was not until 1970 that marijuana became a Schedule I drug under the Controlled Substances Act. At the time, marijuana was thought by lawmakers to have a high potential for abuse and lacked effective medical use. Therefore, the law prohibited the utilization of even medical marijuana. It was not until 2014 when the Rohrabacher–Farr amendment was passed, effectively prohibiting the federal government from interfering with the implementation of state medical cannabis laws, that states were able to regulate the medical use of marijuana. Nevertheless, the federal law and enforcement policy remained the same.

The complexity of the legality and regulation of marijuana creates a great deal of ambiguity and confusion for employers in relation to hiring standards, applicable safety standards, and policies surrounding employee-usage. The rapid, significant changes amongst state governments and concurrent increase in enforcement on the federal level leaves employers in the middle with an increasing need to stay up-to-date on applicable laws and regulations.

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Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild