When I arrived home after a recent visit to Colorado and emptied my jacket pockets onto the dresser, I realized my mistake immediately. By combining the convenience of modern air travel and my absentmindedness, I had traveled across the country using the federal transportation and aviation infrastructure while in possession of a cartridge containing delta-nine tetrahydrocannabinol. Federal transportation authorities have publicly stated they are not looking to arrest Cannabis consumers who travel with personal use amounts. Nevertheless, the confusing and inconsistent rules governing interstate transportation is a considerable problem for all its customers and employees. Let’s look at the various modes of transportation and the laws governing the transportation of Cannabis by those modes.
Traveling with Marijuana — Federal Laws vs. State Laws
Currently, thirty-seven (37) states, four (4) territories and the District of Columbia allow the medical use of cannabis products. In addition, eighteen (18) states and two (2) territories have enacted measures to regulate cannabis for adult non-medical use. The District of Columbia does not regulate non-medical use in personal amounts.
On the other hand, the federal government’s position on Cannabis remains frozen in time in the year 1970 when the Controlled Substances Act (“CSA”) was enacted. Specifically, the United States Code, defines “Marihuana” as a Schedule I drug with a high potential for abuse, with no currently accepted medical use in treatment, and which cannot be used safely, even under medical supervision. Similarly, tetrahydrocannabinols are also listed as a Schedule I drug, which includes any isomers or salts (e.g., Delta 8, Delta 9, etc.).
Hemp based tetrahydrocannabinols are deliberately excluded from the prohibited list of controlled substances listed in Schedule I. Hemp is defined federally as any part of the plant Cannabis sativa L., or its derivatives or extracts, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent measured on a dry weight basis.
The Transportation Security Administration (“TSA”) is a federal agency whose mission is focused on security and detecting threats to both the transportation infrastructure as well as its passengers. On its website, TSA acknowledges that its security officers do not search for marijuana or other illegal drugs. But if any illegal substance is discovered during security screening, TSA will refer the matter to a law enforcement officer. In states where Cannabis is now legal, the local police in Chicago and New York for example, will not arrest anyone in compliance with local law.
In states where Cannabis use is deemed to be medical, TSA notes that it has no way to monitor or assess the validity of state-issued medical cards. Many carriers, including Delta Air Lines, Alaska Airlines and American Airlines have created policies that ban medical marijuana from their aircraft, even if you have a medical card.
Traveling by Airplane
In the instance above, I had flown from a state where Cannabis is legal for use and can be purchased by adults over 21 (Colorado), to a state where Cannabis is dispensed as a medicine to those patients whose medical use has been recommended by qualified health care providers. Regardless, Marijuana and any product containing THC is illegal to possess under federal law in any amount. As you might expect, federal law governs airplane travel in this country, both interstate (between states) and intrastate (within the state).
The airspace I was traveling through from Colorado to Maryland is federal territory, and the transportation system used to support it is federally regulated. So even when an airline passenger is flying between states where adult use is permitted—he/she broke federal and state laws by traveling. First, the passenger broke the law of the state that he/she purchased it from by leaving the state. Second, the passenger broke the law by entering another state with a prohibited product, and third, the passenger broke the law by traveling on a federal mode of transportation with a prohibited Schedule I substance.
Regardless, if you find yourself holding the remainder of cannabis product after a relaxing Colorado weekend and you have already arrived at the airport—fear not. If you are traveling from Los Angeles International Airport (LAX), O’Hare or Midway in Chicago, or Harry Reid International Airport in Las Vegas, a passenger can always use the “amnesty boxes” at the airport. These boxes permit departing travelers to dispose of cannabis or other prescriptive drugs, which were legal to possess in the various states of departure but not on federal property. The boxes are generally placed outside the security checkpoints, are operated by the airport authorities, and are serviced by local police.
Even in Colorado where Cannabis is legal statewide, those departing with cannabis from airports in Colorado Springs and Aspen/Pitkin are instructed to either return it to their vehicles or place it in the amnesty bin. Flights from both airports land at Denver International Airport, where Cannabis is banned.
Traveling by Train or by Highway
For train travel, Amtrak’s policy is strict and quite clear, “The use or transportation of marijuana in any form for any purpose is prohibited, even in states or countries where recreational use is legal or permitted medically.” For travel by bus, the policy is much the same. Greyhound Lines bans alcohol and drugs “anywhere on the bus (including in your checked baggage).”
If you choose to drive a vehicle intrastate or interstate with Cannabis–be discrete. Most Marijuana arrests begin as traffic stops, even in state where Cannabis is legal for adult use. Keep Cannabis locked in your trunk, never drive under the influence, and do not partake of the Cannabis in the interior of the vehicle, especially while driving. Do not carry medical Marijuana or Cannabis in any form in a state where it’s not legal.
Travel with Cannabis in the United States is still confusing. While states may be experimenting with legalizing the use and possession of Cannabis in personal use amounts, the federal government’s position has not changed at all in fifty (50) years. Cannabis is still prohibited on any interstate mode of transportation (such as planes, trains, and automobiles). If you decide to take the risk and travel with Cannabis in any form on a federal mode of transportation, you truly are taking a needless risk. TSA admittedly no longer focuses on searching and locating passengers traveling with Cannabis. But it can still turn routine travel into a headache that you do not need.