Cannabis remains classified as a Schedule I substance under the Controlled Substances Act, meaning it is illegal under federal law. However, 29 states and the District of Columbia have passed or enacted comprehensive medical cannabis programs allowing cannabis use by patients with certain medical issues.
The Network was recently contacted by a health department officer in Maryland who wanted to study the scope and effectiveness of the medical cannabis program in her community. To facilitate this objective, the health officer wanted to know if a local health department could require medical cannabis dispensaries to report additional information on their medical cannabis users beyond what they are required to report to the state of Maryland. Currently, Maryland requires dispensaries to report the following information to the state’s medical cannabis commission: number of patients served, county of residence of each patient, medical condition being treated, type and amount of cannabis dispensed, and if available, a summary of clinical outcomes, including adverse events and any cases of suspected diversion.
The Network provided the requester with information on preemption, which is the primary issue with regard to this question. Preemption is the legal concept that a higher level of government can prevent another level of government from regulating in an area or creating conflicting laws.
The federal government can prevent state regulation based on the preemption power granted to it by the Supremacy Clause of the Constitution. Preemption also applies to the relationship between state and local governments. A local government’s power is derived from the state; consequently the state can place limits on that power.
Preemption is often used to create uniform standards at the national or state level. However, preemption is a power that governments must choose to use. For example, the federal government can choose to regulate a topic but allow states to create stricter or more protective standards for the issue. To provide a concrete example of this concept, the federal government provides criminal and civil liability protections to organizations that donate food to hunger non-profits. However, the federal government allows states to provide stronger liability protections if they so choose.
So the question is “has the state preempted locals from placing additional reporting requirements on dispensaries?” There are three major forms of preemption: express, conflict, and field. Express preemption occurs when the state government explicitly states in the language of the statute or regulation that it wants to limit the authority of local governments. In Maryland, there is no explicit limitation placed on the authority of local governments in regard to cannabis.
However, preemption can occur if the statute does not specifically say “local governments can’t regulate this;” it can be implied. This is where conflict and field preemption become an issue. Conflict preemption can occur if a local ordinance comes in direct conflict with a state law; a local ordinance prohibits something that the state specifically allows or vice versa. Field preemption occurs when the state has “occupied the field.” This means that the state has so thoroughly regulated a field or issue that its desire to preempt local regulation can be implied from the comprehensive nature of the state regulation.
So the answer to this question depends on whether the state has preempted local action through implied conflict or field preemption. The Attorney General of Maryland has issued an advisory opinion that states that local governments cannot prohibit a licensed dispensary from operating within their jurisdiction based on conflict preemption. The opinion argues that local authority cannot prohibit a business that is expressly permitted by the state. The attorney general opinion also points to Maryland Code Ann. Health-Gen. §§ 13-3313 which expressly prohibits licensed dispensaries that comply with Maryland’s cannabis laws from being subjected to “arrest, prosecution, or any civil or administrative penalty . . . .” This prohibition would make it difficult to enforce any additional reporting provision because local government could not force compliance.
While this attorney general opinion does not carry the weight of law, meaning that a court will not rely on it to determine a case before it, it does provide insight into the state’s view of the law. An attempt to place additional reporting requirements on dispensaries could be met with strong resistance by the state, based on its stand in the advisory opinion.
In addition, the extensive system of regulation that Maryland has adopted for the medical cannabis industry could be seen as “occupying the field,” which creates a strong argument through implied field preemption that local governments are prohibited from creating additional reporting requirements.
Network attorneys are available to answer questions on this and other public health topics at no cost to you, and can assist you in using law to advance your public health initiatives. Contact a Network Attorney in your area for more information.
The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.