Cannabis (commonly referred to as marijuana) is the most commonly used illicit drug in the U.S. At least 18% of Americans used it at least once in 2019, according to the Centers for Disease Control and Prevention (CDC)[1]. Despite its prevalence, there’s still a lot of confusion surrounding its use and legality.
There are both federal and state regulations pertaining to cannabis—and they are often at odds with each other. These contradictions create a great deal of confusion for those curious to know whether it’s legal to buy, sell or use cannabis for medical—or even recreational—purposes. If you do plan on buying or using cannabis, knowing the laws in your state is key. Use this guide to determine what is and isn’t legal where you live.
What Is Cannabis, and Is It Legal?
Marijuana, cannabis and hemp are three terms that are similar and often mistaken for one another, says Mackenzie Slade, the director of Cannabis Public Policy Consulting. While hemp is defined as a cannabis sativa plant that contains no more than .3% of the intoxicatingly psychoactive compound delta-9-tetrahydrocannabinol (THC) by dry weight, Slade says “marijuana” and “cannabis” are used interchangeably in terms of legal status.
Both marijuana and cannabis refer to the intoxicating component of the cannabis plant commonly consumed by smoking, eating, vaping or topical application. “Cannabis is a plant of the cannabis genus whose flowers and plant material have concentrated amounts of psychoactive chemicals,” explains Slade. “Some of these psychoactive chemicals can be found in other plants; however, cannabis is the only plant that produces the psychoactive cannabinoids tetrahydrocannabinol (THC) and cannabinol (CBD).” Meanwhile, hemp doesn’t contain high levels of intoxicating compounds.
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Cannabis legalization is a hot topic. While federal laws surrounding the legality of cannabis exist, additional bills regarding its legal status have been debated in the House and Senate as recently as April 2022 with the Marijuana Opportunity Reinvestment and Expungement Act. Additionally, state legislatures have their own laws on cannabis production, sale and use, adding another layer of complication to its legal status.
Federal Regulations
Marijuana is a Schedule 1 substance under the Controlled Substance Act, which went into effect in 1970. “It’s not only illicit, but also deemed to have abuse potential and no medical benefits,” says Slade. She adds that with this scheduling status, cannabis is subjected to Food and Drug Administration (FDA) regulation under the Food, Drug, and Cosmetic Act, as well as Drug Enforcement Administration (DEA) enforcement under the Controlled Substance Act. “It’s federally illicit to use cannabis for adult use or medicinal purposes, with the exception of one prescription drug, Epidiolex,” she says, adding that this drug, which is used to treat seizure disorders, contains CBD, not THC.
On a federal level, marijuana’s legal status hasn’t changed since the 1970s, but there are a couple of ways the federal laws have evolved. The 2013 Cole Memorandum provided guidance for the priorities of marijuana-related federal investigation and prosecution. “The Cole Memo essentially outlined guidelines and priorities for state-regulated cannabis programs to remain within, including prohibiting sales across state lines, prohibiting sales to minors and implementing tracking systems that prevent divergence,” says Slade.
Next, the Marijuana Opportunity Reinvestment and Expungement Act, which was passed by the House in April 2022, proposed descheduling marijuana from the Controlled Substance Act. It also includes expungement of prior convictions related to marijuana. As of May 2022, this bill is with the Senate, though it’s not expected to pass because only three Republican representatives support it.
Cannabis Legalization by State
The movement to decriminalize marijuana started in the 1960s before it was even labeled an illicit substance. There was a growing interest in cannabis use for medical purposes, and in 1996, California became the first state to pass the Medical Marijuana Law (MML), which legalized cannabis use for medical reasons. Currently, 37 states have passed the MML, making it legal to use cannabis for medical reasons in these states. There are also 19 states (plus the District of Columbia) where using cannabis recreationally is legal.
“The process [to make marijuana legal] is different for every state based on its legislative process,” says Slade. For instance, she explains that states in which recreational marijuana use was adopted the earliest—including California and Colorado—a citizen ballot initiative was drawn up and voted on that enabled laws to allow for cannabis regulation.
“Now, we’re seeing a shift where legalization is happening at the legislature level, which is a separate mechanism than a citizen initiative,” says Slade. “Illinois was the first state to pass legislation establishing a taxed and regulated cannabis program through their legislature.”
The chart below details the current legal status of cannabis in every state.
As far as the future of cannabis legalization is concerned, Slade says to expect more change to come. “Because cannabis policy is so different across the country, I imagine federal legalization will ultimately give great deference to state regulations while allowing interstate commerce to begin under appropriate federal tax structures and monitoring,” she says. Allowing interstate commerce, she says, would change the way cannabis businesses operate and how customers buy marijuana significantly.
In other words, the conversation surrounding cannabis legalization is far from over.
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