Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

ROB BONTA

Attorney General

_______________

:

OPINION :

: No. 23-103

of :

: December 19, 2023

ROB BONTA :

Attorney General :

:

KARIM J. KENTFIELD :

Deputy Attorney General :

The HONORABLE NICOLE ELLIOTT, DIRECTOR OF THE DEPARTMENT

OF CANNABIS CONTROL, has requested an opinion on a question relating to interstate

commercial cannabis activity.

QUESTION PRESENTED AND CONCLUSION

Could state-law authorization, under an agreement pursuant to Chapter 25 of

Division 10 of the Business and Professions Code, for medicinal or adult-use commercial

cannabis activity, or both, between out-of-state licensees and California licensees “result

in significant legal risk to the State of California under the federal Controlled Substances

Act” within the meaning of Business and Professions Code section 26308(a)(4)?

Yes. State-law authorization for commercial cannabis activity between out-of-

state licensees and California licensees could “result in significant legal risk to the State

of California under the federal Controlled Substances Act” within the meaning of section

26308(a)(4) due to the risks of federal preemption of state law and criminal prosecution

of state employees. Courts have disagreed about the scope of federal preemption in the

cannabis context, and no court has ever considered a preemption challenge to a state law

authorizing interstate cannabis sales. The law is also unsettled as to whether state

officials could be federally prosecuted for implementing state law in this area.

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BACKGROUND

“California has been a pioneer” in the regulation of cannabis. 1 For most of the

twentieth century, California law prohibited cannabis distribution and possession. 2 In

1996, however, California became the first State to eliminate criminal liability for

medical cannabis use under state law. 3 In that year, the voters approved Proposition 215,

which authorized qualifying patients and their caregivers to possess or cultivate cannabis

for a patient’s personal medical use with the recommendation of a physician. 4 California

voters further liberalized the State’s cannabis laws in 2016 by enacting Proposition 64,

which legalized recreational cannabis use by adults. 5 The initiative also authorized the

State to regulate the cultivation, processing, distribution, and sale of cannabis for

commercial purposes. 6

Implementing these initiatives, the Legislature has created a comprehensive

framework to regulate cannabis cultivation, distribution, manufacture, sale, and use

within the State. 7 The Business and Professions Code contains detailed rules governing

all aspects of the cannabis lifecycle, including business licensing; cultivation; standards

for manufacturing, packaging, and labeling; testing and quality assurance requirements;

1

Gonzales v. Raich (2005) 545 U.S. 1, 5. In 2017, the Legislature replaced all references

to “marijuana” in the Health and Safety Code with the term “cannabis.” (See People v.

Raybon (2021) 11 Cal.5th 1056, 1059, fn. 1, citing Stats. 2017, ch. 27, §§ 113-160.) We

will follow suit and use the term “cannabis” in this opinion, except when quoting sources

that use different terminology.

2

Gonzales v. Raich, supra, 545 U.S. at p. 5.

3

See People v. Kelly (2010) 47 Cal.4th 1008, 1012-1013; Gonzales v. Raich, supra,

545 U.S. at p. 5.

4

See Health & Saf. Code, § 11362.5; 86 Ops.Cal.Atty.Gen. 180 (2003);

88 Ops.Cal.Atty.Gen. 113 (2005).

5

See Health & Saf. Code, § 11362.1; People v. Boatwright (2019) 36 Cal.App.5th 848,

853.

6

See Bus. & Prof. Code, § 26000; Voter Information Guide, Gen. Elec. (Nov. 8, 2016)

text of Prop. 64, § 3, p. 179. Today, 38 States, three territories, and the District of

Columbia have legalized cannabis for medical purposes; 24 States, two territories, and

the District of Columbia have legalized cannabis for recreational use. (See National

Conference of State Legislatures, State Medical Cannabis Laws, https://www.ncsl.org/he

alth/state-medical-cannabis-laws (as of Dec. 19, 2023).)

7

See Bus. & Prof. Code, § 26000 et seq. (the Medicinal and Adult-Use Cannabis

Regulation and Safety Act).

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delivery rules; restrictions on advertising and marketing; regulations of retail sales and

distribution; and prohibitions on cannabis sales to minors. 8 To administer these rules, the

Legislature created the Department of Cannabis Control, which has promulgated

implementing regulations. 9 Cannabis commerce is taxed by the State, with proceeds

funding regulatory enforcement. 10 Tax proceeds also finance myriad cannabis-related

research and safety initiatives concerning substance abuse, youth education, highway

safety, community development, and environmental remediation, among other issues. 11

Cannabis cultivation, distribution, or possession that does not comply with state rules and

regulations remains prohibited by California law. 12

While California and many other States have legalized cannabis under state law,

cannabis production, distribution, and possession remain illegal under the federal

Controlled Substances Act (CSA). 13 “Enacted in 1970 with the main objectives of

combating drug abuse and controlling the legitimate and illegitimate traffic in controlled

substances,” the CSA “criminaliz[es] the unauthorized manufacture, distribution,

dispensing, and possession of [controlled] substances.” 14 The statute categorizes drugs

into five schedules, grouping them based on their perceived risks and benefits. 15

Cannabis is classified as a Schedule I controlled substance, subjecting it to the most

severe restrictions on access and use. 16 As a result, it is a federal crime to manufacture,

8

See Bus. & Prof. Code, §§ 26050-26059 (licensing), §§ 26060-26066.2 (cultivation),

§§ 26130-26131 (manufacturing, packaging, and labeling), § 26110 (quality assurance

and testing), § 26090 (deliveries), §§ 26150-26156 (advertising and marketing),

§§ 26070-26071 (retailers and distributors), § 26140 (sales to minors).

9

See Bus. & Prof. Code, §§ 26010, 26013; Cal. Code Regs., tit. 4, § 15000 et seq.

10

See Rev. & Tax Code, § 34010 et seq.; Rev. & Tax Code, § 34019; California

Department of Tax and Fee Administration, Tax Guide for Cannabis Businesses,

https://www.cdtfa.ca.gov/industry/cannabis.htm (as of Dec. 19, 2023).

11

See Rev. & Tax Code, § 34019.

12

See Health & Saf. Code, §§ 11357-11361; People v. Boatwright, supra, 36 Cal.App.5th

at p. 853.

13

See 21 U.S.C. § 801 et seq.

14

Gonzales v. Oregon (2006) 546 U.S. 243, 250. Before the CSA’s enactment, federal

law “did not outlaw the possession or sale” of cannabis. (Gonzales v. Raich, supra, 545

U.S. at p. 11.) But it “practically curtailed” cannabis activities by imposing

“prohibitively expensive taxes” and “onerous administrative requirements.” (Ibid.)

15

See 21 U.S.C. § 812.

16

See Gonzales v. Raich, supra, 545 U.S. at pp. 14-15. The CSA defines Schedule I

substances as having “a high potential for abuse,” “no currently accepted medical use in

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distribute, or possess cannabis in almost all circumstances. 17 The statute contains no

exception for medical use or for activity authorized by state law. 18

Although cannabis possession and distribution remain illegal under federal law,

federal enforcement has declined in States, like California, that have legalized cannabis

use. Beginning in 2009, the United States Department of Justice issued a series of

memoranda stating that it would not be a departmental priority to prosecute cannabis

activity that complied with state law. 19 While the memoranda were revoked in 2018,

courts and commentators have observed that the Department continues to “show[] little

interest . . . in using federal resources to enforce” the CSA against state-authorized

conduct. 20 Moreover, for every fiscal year since 2015, Congress has passed an annual

treatment,” and “a lack of accepted safety for use . . . under medical supervision.”

(21 U.S.C. § 812, subd. (b)(1)(A)-(C).) Congress placed cannabis on Schedule I when it

enacted the CSA. (See Gonzales v. Raich, supra, 545 U.S. at p. 14.) Although the statute

“provides for the periodic updating of schedules,” previous “efforts to reschedule”

cannabis have been unsuccessful. (Id. at pp. 14-15.) On August 29, 2023, the U.S.

Department of Health and Human Services recommended for the first time that cannabis

should be rescheduled to Schedule III. (See Congressional Research Service, Department

of Health and Human Services Recommendation to Reschedule Marijuana: Implications

for Federal Policy (Sept. 13, 2023), https://crsreports.congress.gov/product/pdf/IN/IN122

40 (as of Dec. 19, 2023)). Because rescheduling would also require approval from the

U.S. Drug Enforcement Administration, cannabis currently remains classified on

Schedule I. (See ibid.)

17

See 21 U.S.C. §§ 841, subd. (a)(1), 844, subd. (a); 97 Ops.Cal.Atty.Gen. 21, 23 (2014).

The statute contains a narrow exception for federally approved research studies. (See

Gonzales v. Raich, supra, 545 U.S. at p. 14.)

18

See United States v. Oakland Cannabis Buyers’ Co-op. (2001) 532 U.S. 483, 486.

19

E.g., Memorandum For Selected United States Attorneys from David W. Ogden,

Deputy Att’y Gen., Investigations and Prosecutions in States Authorizing the Medical

Use of Marijuana (Oct. 19, 2009); Memorandum For All United States Attorneys from

James M. Cole, Deputy Att’y Gen., Guidance Regarding Marijuana Enforcement (Aug.

29, 2013) (Cole Memorandum). For States that had implemented “strong and effective

regulatory and enforcement systems,” the memoranda directed that “the primary means

of addressing” cannabis-related activity should be state-law enforcement. (Cole

Memorandum, at p. 3.)

20

In re State Question No. 807, Initiative Petition No. 423 (Okla. 2020) 468 P.3d 383,

392, fn. 5; see Mikos, The Evolving Federal Response to State Marijuana Reforms (2020)

26 Widener L. Rev. 1, 10 (revocation of the memoranda “did not actually change federal

enforcement practices”).

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appropriations rider that prohibits the Department of Justice from using appropriated

funds to “prevent [States] from implementing their own laws that authorize the use,

distribution, possession, or cultivation of medical marijuana.” 21 Federal appellate courts

have construed the rider not only to bar the Department from suing States directly, but

also to prohibit federal prosecution of activities carried out in compliance with state

medical cannabis laws. 22

Against the backdrop of federal prohibition, California has taken an incremental

approach to legalizing cannabis under state law. Relevant here, while California has

authorized intrastate cannabis activity, it has continued to prohibit cannabis exports to

other States. 23 California’s export ban has been motivated, in part, by a concern that

authorizing shipments across state lines could attract heightened federal interest in

enforcing the CSA. 24 Other States have imposed similar export bans as well. 25 As a

result, California companies cannot currently engage in interstate cannabis commerce

without violating state law.

Recent legislation could change that. Senate Bill 1326—enacted September 18,

2022, and effective January 1, 2023—empowers the Governor to enter into interstate

cannabis agreements with other States. 26 Such agreements could authorize “medicinal or

adult-use commercial cannabis activity, or both, between entities licensed under the laws

of” the two States. 27 If an interstate agreement were put in place, California-licensed

21

Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, § 531 (Dec. 29, 2022)

136 Stat. 4459, 4561 effective through Sept. 30, 2023; see Continuing Appropriations

Act, 2024 and Other Extensions Act, Pub. L. No. 118-15, § 104 (Sept. 30, 2023) 137 Stat.

71, 74, effective through Nov. 17, 2023; Further Continuing Appropriations and Other

Extensions Act, 2024, Pub. L. No. 118-22, § 101 (Nov. 17, 2023) 137 Stat. 112, generally

effective through Feb. 2, 2024.

22

See United States v. McIntosh (9th Cir. 2016) 833 F.3d 1163, 1175-1179; United States

v. Bilodeau (1st Cir. 2022) 24 F.4th 705, 712-715.

23

See Bus. & Prof. Code, § 26080, subd. (a).

24

See Off. of Ass. Floor Analyses, 3d reading analysis of Sen. Bill No. 1326 (2021-2022

Reg. Sess.) Aug. 19, 2022, p. 3.

25

See Off. of Ass. Floor Analyses, 3d reading analysis of Sen. Bill No. 1326 (2021-2022

Reg. Sess.) Aug. 19, 2022, p. 3.

26

See Stats. 2022, ch. 396, §§ 1-5 (enacting Sen. Bill No. 1326), codified in relevant part

at Bus. & Prof. Code, Div. 10, Ch. 25, §§ 26300-26308.

27

Bus. & Prof. Code, § 26301, subd. (a). The statute refers to companies licensed by a

partner state as “foreign licensees.” (See Bus. & Prof. Code, § 26300, subd. (c).) Like

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businesses could engage in cannabis commerce with out-of-state licensees without

violating California law. 28

SB 1326 mandates that any such interstate agreement include a number of

conditions to ensure compliance with California’s comprehensive health and safety

standards. An agreement must require the partner State to ensure that cannabis products

imported into California “meet or exceed” California regulatory requirements, including:

“public health and safety standards”; participation in California’s “seed to sale” tracking

system; testing, quality assurance, and inspection standards; packaging and labeling

requirements; and marketing and advertising restrictions. 29 The partner State must agree

to regulate advertising, labeling, and sales of California cannabis products imported into

its State as well. 30 Partner States must also agree to “reasonably cooperate with

California investigations concerning” out-of-state licensees, including by investigating

allegations of regulatory noncompliance at California’s request. 31 To avoid conflict with

non-partner States, the agreement must prohibit transportation of cannabis products

“through the jurisdiction” of any State “that does not authorize that transportation.” 32

Agreements must also “provide for collection of all applicable taxes.” 33

Although SB 1326 took effect on January 1, 2023, the statute contains an

important limitation: It provides that no agreement between California and another State

to authorize interstate cannabis activity “shall . . . take effect unless” one of four

conditions is satisfied. 34 The first three conditions involve changes to federal law or

the requestor, we will refer to such companies as “out-of-state licensees” for clarity.

28

See Bus. & Prof. Code, § 26080, subd. (a) (prohibiting cannabis exports “[e]xcept as

provided in Chapter 25,” i.e., the chapter added by SB 1326), § 26301, subd. (a),

§ 26302, subd. (a). Two other States that have legalized cannabis—Oregon and

Washington—have enacted similar legislation authorizing their Governors to negotiate

interstate cannabis agreements. Neither State’s law will take effect, however, unless

federal law or policy is changed to allow interstate cannabis distribution between state-

licensed businesses. (See An Act Relating to Interstate Cannabis Agreements, 2023

Wash. Sess. Laws. Ch. 264, § 2; An Act Relating to Cannabis, 2019 Or. Laws Ch. 464,

§ 3.)

29

Bus. & Prof. Code, § 26303, subd. (a)(1)-(7).

30

Bus. & Prof. Code, § 26303, subd. (b).

31

Bus. & Prof. Code, § 26304, subd. (b).

32

Bus. & Prof. Code, § 26301, subd. (a)(2)(B).

33

Bus. & Prof. Code, § 26306.

34

Bus. & Prof. Code, § 26308, subd. (a).

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federal policy. 35 The fourth condition, under Business and Professions Code section

26308(a)(4), is that the California Attorney General issues a qualifying “written opinion,

through the process established pursuant to Section 12519 of the Government Code.” 36

The opinion must conclude that “state law authorization, under an agreement pursuant to

this chapter, for medicinal or adult-use commercial cannabis activity, or both, between

foreign licensees and state licensees will not result in significant legal risk to the State of

California under the federal Controlled Substances Act.” 37 The opinion must be “based

on review of applicable law, including federal judicial decisions and administrative

actions.” 38

The Department of Cannabis Control submitted this opinion request to obtain a

legal opinion that would satisfy section 26308(a)(4)—and thereby enable the Governor to

begin entering into interstate agreements. 39 Mirroring the statutory language, the request

asks whether state-law authorization of interstate commercial cannabis activities between

licensed cannabis businesses could “result in significant legal risk to the State of

California under the federal Controlled Substances Act.” 40 The requestor included a legal

analysis explaining why, in its view, it would not. For the reasons that follow, we cannot

agree.

SUMMARY

The question presented here—whether state-law authorization of interstate

cannabis activities could result in significant legal risk to the State—is atypical for an

opinion request under Government Code section 12519. Our charge under section 12519

35

The first two conditions are (i) that federal law “is amended to allow for the interstate

transfer of cannabis or cannabis products between authorized commercial cannabis

businesses” or (ii) that federal law is enacted to “specifically prohibit[] the expenditure of

federal funds to prevent” such activities. (Bus. & Prof. Code, § 26308, subd. (a)(1)-(2).)

The third condition is that the U.S. Department of Justice “issues an opinion or

memorandum allowing or tolerating” interstate cannabis distribution. (Bus. & Prof.

Code, § 26308, subd. (a)(3).)

36

Bus. & Prof. Code, § 26308, subd. (a)(4). Government Code section 12519 authorizes

enumerated state and local officials to request the Attorney General’s written opinion

“upon any question of law relating to their respective offices.”

37

Bus. & Prof. Code, § 26308, subd. (a)(4).

38

Bus. & Prof. Code, § 26308, subd. (a)(4).

See Department of Cannabis Control, letter to former Senior Assistant Attorney

39

General Mollie Lee, Jan. 27, 2023 (Request for Opinion).

40

Request for Opinion, at p. 1; see Bus. & Prof. Code, § 26308, subd. (a)(4).

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is limited to addressing “question[s] of law.” 41 But an assessment of “legal risk” may

turn on various non-legal considerations—such as the likelihood that a future federal

administration would sue the State, or the likelihood that a future Congress would

appropriate funds to support such a suit. For this reason, we would ordinarily decline to

analyze the degree of legal risk resulting from a proposed course of action. In this case,

however, the Legislature has enacted a statute—Business and Professions Code section

26308(a)(4)—that not only invites the Attorney General to assess the State’s “legal risk,”

but also gives that assessment binding legal effect. In this highly unusual circumstance,

we will endeavor to answer the question presented. But mindful of our statutory charge

to analyze only questions of law, we will limit our analysis to the legal issues embedded

in the question.

We begin by considering what types of adverse outcomes are relevant to the

“legal risk” inquiry. Applying ordinary tools of statutory construction, we construe the

phrase “legal risk to the State of California under the federal Controlled Substances Act”

in section 26308(a)(4) to refer to the possibility of the State bearing a loss, injury, or

other adverse circumstance that is founded on the CSA. In our view, one such

circumstance would be if the CSA were deemed to preempt SB 1326—i.e., if a court

declared California’s law without effect under the Supremacy Clause of the United States

Constitution. Preemption of SB 1326 would prevent California from carrying out its

preferred policy of authorizing and carefully regulating interstate cannabis activities.

And the State could be a defendant in a preemption suit, forced to appear in court and

expend resources defending its laws. If a court held SB 1326 preempted, the State could

also be ordered to pay the plaintiff’s attorneys’ fees.

Although there are strong arguments against preemption here, the arguments in

favor of preemption are sufficiently plausible that we cannot conclude that the legal risk

is insignificant. On the one hand, most courts have held that the CSA does not preempt

state laws authorizing and regulating intrastate cannabis activities. Consistent with those

authorities, a court could reasonably conclude that California’s authorization of interstate

activities would not be preempted either. Under the federal Constitution, Congress

cannot compel California to maintain its existing state-law prohibition on interstate

commercial cannabis sales. And California’s health and safety regulation of cannabis

imports and exports would arguably advance, not hinder, the objectives underlying

federal law by minimizing the worst harms associated with cannabis trafficking. On the

other hand, some courts and dissenting judges have concluded that state laws authorizing

intrastate cannabis activities are preempted because they stand as an obstacle to the

CSA’s objective of eliminating all cannabis distribution and use. In light of those

41

Gov. Code, § 12519; see also 62 Ops.Cal.Atty.Gen. 150, 163 (1979) (“The function of

this office is not to resolve factual disputes, or disputes as to conflicting inferences which

may arise from such facts, but to render opinions on legal questions”);

105 Ops.Cal.Atty.Gen. 39, 39 (2022).

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authorities, we cannot conclude that the likelihood of a court holding SB 1326 preempted

is so low as to be insignificant—especially since no court has ever considered preemption

in the context of interstate sales. And while there may be reasons to believe that

preemption litigation would be unlikely to arise in practice, we are not in a position to

make political or economic predictions about whether the United States or another party

would be likely to sue.

Finally, we analyze an additional risk: that state officials who implement SB 1326

could be federally prosecuted for violating the Controlled Substances Act. The requestor

believes that such a prosecution is unlikely, both because state officials would not satisfy

the elements of a CSA violation and because officials would be shielded from liability by

the CSA’s immunity provision. We agree that state officials would have strong

arguments that they cannot be held criminally liable for carrying out their official duties.

We acknowledge, however, that some state and federal authorities could support a theory

of liability in these circumstances. We therefore conclude that the possibility of state

employees facing criminal prosecution further increases the State’s legal risk here—

reinforcing our conclusion that state-law authorization for commercial cannabis activity

between out-of-state licensees and California licensees could “result in significant legal

risk to the State of California under the federal Controlled Substances Act” within the

meaning of section 26308(a)(4).

ANALYSIS

What is the scope of the opinion request?

We begin by considering an important threshold question: what does Business

and Professions Code section 26308(a)(4) mean by a “significant legal risk to the State of

California under the federal Controlled Substances Act”? The statute itself does not

define the relevant terms. Applying the ordinary tools of statutory interpretation, we

therefore look to dictionary definitions. 42

As relevant here, “risk” is defined as “the possibility of loss, injury, or other

adverse or unwelcome circumstance.” 43 The adjective “legal” means “founded on or

deriving authority from law.” 44 The relevant law here is the federal Controlled

Substances Act. And the only legal risk we are concerned with is risk “to the State of

42

See Brennon B. v. Superior Ct. (2022) 13 Cal.5th 662, 673 (the “fundamental task” in

statutory interpretation “is to determine the Legislature’s intent so as to effectuate the

law’s purpose” by examining the statutory language and “giving it a plain and

commonsense meaning”); id. at p. 674 (looking to dictionary definitions).

43

Oxford English Dict. (updated through Dec. 2023) [“risk”].

44

Oxford English Dict. (updated through Dec. 2023) [“legal”].

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California.” Putting this all together, the phrase “legal risk to the State of California

under the federal Controlled Substances Act” refers to “the possibility of loss, injury, or

other adverse or unwelcome circumstance” borne by the State that is “founded on” the

CSA. 45

Applying this construction, we believe that relevant legal risks include the

possibility that California’s laws authorizing interstate cannabis activities could be

deemed preempted by the Controlled Substances Act—that is, declared “without effect”

under the Supremacy Clause. 46 In our view, such a result would constitute an “adverse or

unwelcome circumstance” for the State. 47 By invalidating California law in this area,

preemption would prevent the State from carrying out its preferred policy of authorizing

and carefully regulating interstate commercial cannabis activity. 48 If a court were to hold

that SB 1326 is preempted, the State would also suffer the “loss” of any resources it had

already expended implementing the statutory regime—costs that the Legislature expected

to be “significant.” 49 And the State could be haled into court and forced to expend

45

We note that several potential legal issues are beyond the scope of the question

presented. Because the question is limited to risk under the Controlled Substances Act,

we will not analyze other possible challenges to SB 1326—for example, whether the

Legislature’s authorization of cannabis exports could conflict with the 2016 voter

initiative that legalized only intrastate cannabis activity. (See Assem. Com. on Business

and Professions, Rep. on Sen. Bill No. 1326 (2021-2022 Reg. Sess.) as amended June 6,

2022, p. 9.) Also, given that we are concerned only with legal risk to the State, our

analysis does not turn on the potential federal criminal liability of private actors who

choose to engage in interstate commercial cannabis activities in accordance with state

law. And because the question asks only about liability from authorizing interstate

cannabis activities, we need not consider whether the State’s failure to authorize such

activities could prompt legal challenges—such as claims that the current ban on cannabis

exports runs afoul of the dormant Commerce Clause. (See, e.g., Ne. Patients Grp. v.

United Cannabis Patients & Caregivers of Maine (1st Cir. 2022) 45 F.4th 542 [applying

the dormant Commerce Clause to state cannabis laws].)

46

Mut. Pharm. Co. v. Bartlett (2013) 570 U.S. 472, 475. We need not resolve in this

opinion whether any other types of legal risk fall within the scope of section 26308(a)(4).

Our conclusion that preemption could pose a significant legal risk to the State is

sufficient to answer the question presented.

47

Oxford English Dict. (updated through Dec. 2023) [“risk”].

48

Cf. Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez (1982) 458 U.S. 592, 601

(noting a State’s “sovereign interest[]” in exercising “power over individuals and

entities” within its jurisdiction, including “the power to create and enforce a legal code”).

49

See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No.

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further resources defending its laws. 50 If a court held SB 1326 preempted, the State could

also be required to pay the plaintiff’s attorneys’ fees. 51

The legislative history of SB 1326 further supports our conclusion that preemption

is a relevant risk. In the final legislative hearings, the senators presenting the bill stated

that the section 26308(a) conditions were included to minimize the possibility of “conflict

between the State of California and the federal government.” 52 Such a conflict could be

premised on preemption: the United States could sue California seeking to enjoin

enforcement of SB 1326 on the theory that it is preempted by the CSA. Indeed, the

United States has previously brought similar suits against the State in other contexts. 53

We acknowledge that the requestor would read the statute differently. In a

footnote in its request letter, the Department of Cannabis Control argues that the risk of

preemption is not a legal risk to the State itself because the mechanism by which

Congress preempts state laws is through “a federal law that regulates the conduct of

private actors, not the States.” 54 Here, for instance, the potential source of preemption—

1326 (2021-2022 Reg. Sess.) as amended Aug. 18, 2022, p. 8 (describing cost estimates

to implement the bill).

50

See McCormick, Legal Risk in the Financial Markets, at p. 21 (2d ed. 2010) (“Legal

risk . . . is commonly understood to relate to the risk of being sued or being the subject of

a claim or proceedings”); Arnott, Report On The International Bar Ass’n Symposium On

Legal Risk (2004) 4 J. Int’l Banking & Financ. Law 1 (legal risk includes “the risk for [an

entity] of having a legal claim . . . brought against it”).

51

See Code Civ. Proc., §§ 1021.5, 1028; Graham v. DaimlerChrysler Corp. (2004) 34

Cal.4th 553, as modified (Jan. 12, 2005); Maria P. v. Riles (1987) 43 Cal.3d 1281.

52

Sen. Floor, Hearing on Sen. Bill. No. 1326 (Aug. 25, 2022), Sen. Caballero, at 2:09:20

(statement of bill author that, under section 26308(a), “interstate cannabis agreements . . .

cannot go into effect until there is an appropriate assurance that the agreements will not

cause conflict between the State of California and the federal government”); see Assem.

Floor, Hearing on Sen. Bill. No. 1326 (Aug. 22, 2022), Sen. Berman, at 3:51:01 (similar);

see also, e.g., Kenna v. U.S. Dist. Ct. for C.D.Cal. (9th Cir. 2006) 435 F.3d 1011, 1015-

1016 (discerning legislative intent from uncontested floor statements of bill sponsors).

53

E.g., United States v. California (9th Cir. 2019) 921 F.3d 865, 886-888 (alleging

preemption of California law under the Immigration and Nationality Act). In addition, as

discussed below, preemption challenges to SB 1326 could potentially be raised by parties

other than the United States. For example, California counties have previously sued the

State alleging that the CSA preempts other state cannabis laws. (See Cnty. of San Diego

v. San Diego NORML (2008) 165 Cal.App.4th 798, 813-818.)

54

Request for Opinion, at p. 4, fn. 4, quoting Murphy v. Nat’l Collegiate Athletic Ass’n

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the Controlled Substances Act—regulates the conduct of private actors by prohibiting

them from distributing or possessing cannabis. But where a federal statute has

preemptive effect, the result is to “nullify” affected state statutes and regulations—

leaving them without legal effect. 55

A comment letter submitted by the California Cannabis Authority agrees with our

conclusion that preemption is a relevant risk. 56 That letter argues that the key legal risk

under Business and Professions Code section 26308(a)(4) is that “the federal government

will bring an action against the State of California challenging” SB 1326 on the ground

that it is “preempted by the CSA.” 57 The letter explains why, in the Authority’s view, the

State’s laws would not be preempted. 58 Like us, however, the Authority views

preemption as a cognizable form of “legal risk” for purposes of section 26308(a)(4). 59

Having identified CSA preemption as a relevant legal risk under section

26308(a)(4), we next consider how to determine if that risk is “significant.” As we have

(2018) 138 S.Ct. 1461, 1481. As discussed in more detail below, Congress lacks the

authority under the Constitution to directly command the States to enact (or refrain from

enacting) legislation. But where Congress regulates the conduct of private actors, it has

the power to preempt—i.e., invalidate—conflicting state laws under the Supremacy

Clause.

55

Nathan Kimmel, Inc. v. DowElanco (9th Cir. 2002) 275 F.3d 1199, 1203; see Mut.

Pharm. Co. v. Bartlett, supra, 570 U.S. at p. 475 (preemption leaves state laws “without

effect”).

56

See California Cannabis Authority, letter to Deputy Attorney General Karim J.

Kentfield, Apr. 4, 2023 (California Cannabis Authority Comment). The California

Cannabis Authority is “a Joint Powers Authority created by California Counties.” (Id. at

p. 1.) The Authority “assist[s] local governments in efficiently and effectively deploying

resources for commercial cannabis oversight and taxation,” while “promoting the

functioning of a legal cannabis marketplace.” (Ibid.)

57

California Cannabis Authority Comment, at pp. 2-3.

58

See California Cannabis Authority Comment, at pp. 4-6.

59

Another comment letter similarly argues that the Legislature’s “principal[] concern[]”

in including the section 26308(a) conditions was to avoid “legal action, by the federal

administration, against the State of California.” (Rural County Representatives of

California and California State Association of Counties, letter to Deputy Attorney

General Karim J. Kentfield, Mar. 28, 2023, at p. 5 (Rural County Representatives

Comment).) As explained above, a potential basis for such an action would be a claim

that the State’s laws are preempted by the CSA.

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concluded in other contexts, “significant” does not mean “more likely than not.” 60

Rather, the Oxford English Dictionary defines “significant” as “[s]ufficiently great or

important to be worthy of attention; noteworthy; consequential, influential.” 61 Reflecting

the term’s imprecision, other dictionaries offer alternative definitions, including “having

or likely to have influence or effect” 62; “deserving to be considered,” “important,”

“weighty” 63; and “[h]aving or likely to have a major effect,” “[f]airly large in amount or

quantity.” 64 Applying any of these definitions, we believe that the consequences of the

legal risk we have identified—preemption of state law—would be “significant.” 65

But what about the likelihood of preemption—i.e., is there a “significant”

probability that preemption litigation would arise and that a court would ultimately

conclude that SB 1326 is preempted? 66 As discussed above, we will analyze that

question by considering the underlying “question[s] of law.” 67 Specifically, we will

evaluate whether the legal arguments in favor of preemption are sufficiently plausible

that the risk of a court adopting them would be “significant.” Given that some courts

have determined that laws authorizing intrastate cannabis activities are preempted—and

no court has ever considered a law authorizing interstate sales—we conclude that the

legal risk is “significant.”

60

See 93 Ops.Cal.Atty.Gen. 104, 108 (2010) (a “significant” clash of loyalties in

Government Code section 1099(a)(2) is a “modest standard,” requiring a conflict that is

not “trivial” and is “more certain than mere chance”); 101 Ops.Cal.Atty.Gen. 81, 85-86

(2018).

61

Oxford English Dict. (updated through Sept. 2023) [“significant”].

62

Merriam-Webster’s Collegiate Dict. (11th ed. 2020) p. 1159 [“significant”].

63

Webster’s New Internat. Dict. (3d ed. 1976) p. 2116 [“significant”].

64

American Heritage Dict. (5th ed. 2016) p. 1630 [“significant”].

65

Moreover, to the extent there is meaningful variation among the definitions, we see no

basis to selectively adopt one or another. Rather, in keeping with the Legislature’s

cautious approach—authorizing interstate cannabis activities, as relevant here, only if the

Attorney General can rule out the possibility that “significant” legal risk would result—

we believe it is appropriate to issue an opinion of no “significant” risk only if we

conclude that the risk would not be significant under any conventional definition of the

term.

66

See International Organization for Standardization (2002), defn. 3.1.1 (defining “risk”

as the “combination of the probability of an event and its consequences”).

67

Gov. Code, § 12519.

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Is there a significant risk that a court would hold that the Controlled Substances

Act preempts California’s laws authorizing interstate cannabis activity?

The Supremacy Clause of the U.S. Constitution provides that “the Laws of the

United States . . . shall be the supreme Law of the Land,” “any Thing in the Constitution

or Laws of any State to the Contrary notwithstanding.” 68 Because “federal law is

supreme in case of a conflict with state law,” Congress may preempt state laws through

federal legislation, thereby leaving them without legal effect. 69 In evaluating preemption

claims, “the purpose of Congress is the ultimate touchstone.” 70

The U.S. Supreme Court has identified three types of preemption: express, field,

and conflict. 71 First, express preemption arises when Congress includes a preemption

provision in the statute that “define[s] explicitly the extent to which its enactments pre-

empt state law.” 72 Second, field preemption occurs when a “federal law occupies a

‘field’ of regulation so comprehensively that it has left no room for supplementary state

legislation.” 73 Third, conflict preemption arises when state law “actually conflicts with

federal law.” 74 A conflict can occur in two ways: either “where it is impossible for a

private party to comply with both state and federal requirements” (impossibility

68

U.S. Const., art. VI, cl. 2.

69

Murphy v. Nat’l Collegiate Athletic Ass’n, supra, 138 S.Ct. at p. 1479; see Mut. Pharm.

Co. v. Bartlett, supra, 570 U.S. at p. 475 (preemption leaves state laws “without effect”);

Oneok, Inc. v. Learjet, Inc. (2015) 575 U.S. 373, 376 (preemption “invalidate[s]” state

laws).

70

Wyeth v. Levine (2009) 555 U.S. 555, 565, quoting Medtronic, Inc. v. Lohr (1996) 518

U.S. 470, 485.

71

See Murphy v. Nat’l Collegiate Athletic Ass’n, supra, 138 S.Ct. at p. 1480.

72

English v. Gen. Elec. Co. (1990) 496 U.S. 72, 78; see, e.g., Morales v. Trans World

Airlines, Inc. (1992) 504 U.S. 374 (applying express preemption clause in the Airline

Deregulation Act of 1978).

73

Murphy v. Nat’l Collegiate Athletic Ass’n, supra, 138 S.Ct. at p. 1480, internal

quotation marks omitted; see also Hillsborough Cnty., Fla. v. Automated Med. Lab’ys,

Inc. (1985) 471 U.S. 707, 713 (Congress’s intent to occupy a legal field “may be inferred

where the scheme of federal regulation is sufficiently comprehensive to make reasonable

the inference that Congress left no room for supplementary state regulation” or “where

the field is one in which the federal interest is so dominant that the federal system will be

assumed to preclude enforcement of state laws on the same subject,” internal quotation

marks omitted).

74

English v. Gen. Elec. Co., supra, 496 U.S. at p. 79.

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preemption), or “where state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress” (obstacle preemption). 75

Preemption under the Controlled Substances Act

Congress expressly addressed the preemptive effect of the Controlled Substances

Act in section 903 of title 21 of the United States Code. As we have previously

explained, section 903 “allow[s] the states some freedom to continue the enforcement of

their own narcotic laws.” 76 Specifically, it provides that:

No provision of this subchapter shall be construed as indicating an intent on the part

of the Congress to occupy the field in which that provision operates, including

criminal penalties, to the exclusion of any State law on the same subject matter

which would otherwise be within the authority of the State, unless there is a positive

conflict between that provision of this subchapter and that State law so that the two

cannot consistently stand together. 77

As the California Court of Appeal has recognized, section 903 expressly “reject[s] . . .

field preemption of state laws concerning controlled substances.” 78 Instead, as the United

States Supreme Court has observed, the statute “explicitly contemplates a role for the

States in regulating controlled substances.” 79

As to what state laws are preempted, courts generally agree that the CSA

incorporates the first sub-type of conflict preemption, addressing situations where it is

impossible for a private party to comply with both state and federal law. 80 Courts

75

English v. Gen. Elec. Co., supra, 496 U.S. at p. 79, internal quotation marks omitted.

Given that conflict preemption has two sub-types—impossibility and obstacle—some

courts consider there to be “four species of federal preemption” in total. (Viva! Internat.

Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929,

935.)

76

54 Ops.Cal.Atty.Gen. 57, 61 (1971).

77

21 U.S.C. § 903.

78

Cnty. of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at p. 819.

79

Gonzales v. Oregon, supra, 546 U.S. at p. 251; see also id. at p. 270 (the limited scope

of the CSA preemption clause “caution[s] against the conclusion that the CSA effectively

displaces the States’ general regulation of medical practice”).

80

See, e.g., Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734,

758-760; People v. Crouse (Colo. 2017) 388 P.3d 39, 42-43; Musta v. Mendota Heights

Dental Ctr. (Minn. 2021) 965 N.W.2d 312, 321-327.

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disagree, however, as to whether section 903 also incorporates the second sub-type of

conflict preemption, addressing circumstances where state law stands as an obstacle to

accomplishing the federal statute’s purposes and objectives. 81 One district division of the

California Court of Appeal, for instance, has reasoned that, by expressly limiting

preemption to a “positive conflict,” Congress intended state laws to be preempted on

impossibility preemption grounds alone. 82 Other courts—including another division

within the same district of the California Court of Appeal—have construed section 903

more expansively to incorporate obstacle preemption as well. 83 We need not weigh in on

this debate here. Given that many courts have concluded that section 903 incorporates

both sub-types of conflict preemption, there is a significant risk that a court considering a

preemption challenge to SB 1326 would reach the same conclusion. We will therefore

analyze both impossibility and obstacle preemption.

Impossibility preemption of SB 1326

We begin with impossibility preemption—a “demanding” standard to satisfy. 84

As described above, the doctrine applies only if “it is impossible for a private party to

comply with both state and federal requirements” in a given area. 85 So, where “federal

81

See Appeal of Panaggio (2021) 174 N.H. 89, 95-96 (“Some courts have ruled that,

given the language in Section 903, the CSA preempts a state law only under impossibility

preemption, and not under obstacle preemption. . . . Other courts have disagreed”).

82

See Cnty. of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at p. 823 (“The

phrase ‘positive conflict,’ particularly as refined by the phrase that ‘the two [laws] cannot

consistently stand together,’ suggests that Congress did not intend to supplant all laws

posing some conceivable obstacle to the purposes of the CSA, but instead intended to

supplant only state laws that could not be adhered to without violating the CSA”); see

also Mikos, Preemption Under the Controlled Substances Act (2013) 16 J. Health Care L.

& Pol’y 5 (arguing that the CSA incorporates only impossibility preemption).

83

See, e.g., Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at

pp. 760-763; Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin.

(9th Cir. 2017) 860 F.3d 1228, 1236; United States v. Zadeh (5th Cir. 2016) 820 F.3d

746, 751-752; Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus. (2010) 348 Or.

159, 176-178. Although the U.S. Supreme Court performed an obstacle-preemption

analysis under a federal statute with a similarly worded preemption clause, it is unclear

whether the Court construed the clause to incorporate obstacle preemption or simply

assumed, without deciding, that it did, before concluding that the state law at issue did

not, in any event, pose an obstacle to accomplishing the federal statute’s objectives. (See

Wyeth v. Levine, supra, 555 U.S. at pp. 573-581.)

84

Wyeth v. Levine, supra, 555 U.S. at p. 573.

85

English v. Gen. Elec. Co., supra, 496 U.S. at p. 79; see also Fla. Lime & Avocado

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law forbids an action that state law requires”—or vice versa—simultaneous compliance

with both laws is impossible, and the state law is preempted. 86 For example, the Supreme

Court has held that a state law requiring generic drug manufacturers to add warnings to

their labels was preempted where federal law prohibited adding the warnings. 87

Here, simultaneous compliance with state and federal law would not be

impossible. Although the California law at issue would authorize interstate commercial

cannabis activity as a matter of state law, it would not require any party to engage in that

activity. 88 A private party could therefore “comply with both” California and federal law

by simply “refraining from any” cannabis activity that crossed state lines. 89 For this

reason, numerous courts have concluded that state laws that merely authorize and

regulate intrastate cannabis distribution and possession are not preempted by the CSA

under an impossibility analysis. 90 We see no reason why a court would reach a different

conclusion in the context of interstate activities.

Growers, Inc. v. Paul (1963) 373 U.S. 132, 142-143 (“A holding of federal exclusion of

state law is inescapable . . . where compliance with both federal and state regulations is a

physical impossibility for one engaged in interstate commerce”).

86

Mut. Pharm. Co. v. Bartlett, supra, 570 U.S. at p. 486.

87

Mut. Pharm. Co. v. Bartlett, supra, 570 U.S. at p. 475; see ibid. (“Under the

Supremacy Clause, state laws that require a private party to violate federal law are pre-

empted and, thus, are without effect,” internal quotation marks omitted).

88

See Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at p. 759 (no

impossibility preemption of California law legalizing medical cannabis use because it did

not “require[] anything the CSA forbids”).

89

Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at p. 176;

accord Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977, 980-981 (no conflict between

federal law prohibiting felons from carrying guns and state law allowing such

possession).

90

See, e.g., Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at

p. 176 (Oregon medical cannabis law); Qualified Patients Assn. v. City of Anaheim,

supra, 187 Cal.App.4th at pp. 758-760 (California medical cannabis law); In re State

Question No. 807, Initiative Petition No. 423, supra, 468 P.3d at pp. 390-391 (Oklahoma

ballot initiative to legalize recreational cannabis); Ter Beek v. City of Wyoming (2014)

495 Mich. 1, 12-14 (Michigan medical cannabis law). In contrast, courts have found

impossibility preemption where they conclude that state law requires unwilling parties to

violate the CSA. (See, e.g., People v. Crouse, supra, 388 P.3d at p. 42 [Colorado law

required law enforcement to return resident’s cannabis, thereby violating the CSA];

Bourgoin v. Twin Rivers Paper Co., LLC (Me. 2018) 187 A.3d 10, 18-22 [Maine law

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Obstacle preemption of SB 1326

As to obstacle preemption, the analysis is more complex and we cannot conclude

that the risk is insignificant. The doctrine applies if California’s legalization and

regulation of interstate commercial cannabis activity would stand as an obstacle to

accomplishing the CSA’s objectives, which are “to conquer drug abuse and to control the

legitimate and illegitimate traffic in controlled substances.” 91 “What is a sufficient

obstacle is a matter of judgment, to be informed by examining the federal statute as a

whole and identifying its purpose and intended effects.” 92 But obstacle-preemption

“analysis does not justify a freewheeling judicial inquiry into whether a state statute is in

tension with federal objectives; such an endeavor would undercut the principle that it is

Congress rather than the courts that pre-empts state law.” 93 Accordingly, “a high

threshold must be met if a state law is to be preempted for conflicting with the purposes

of a federal Act.” 94 Indeed, courts “start with the assumption that the historic police

powers of the States were not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” 95

required employer to subsidize employee’s medical cannabis use, thereby violating the

CSA].)

91

Gonzales v. Raich, supra, 545 U.S. at p. 12.

92

Crosby v. Nat’l Foreign Trade Council (2000) 530 U.S. 363, 373.

93

Chamber of Com. of U.S. v. Whiting (2011) (plurality opin.) 563 U.S. 582, 607, internal

quotation marks omitted. Although Justice Thomas did not join this section of the

Court’s opinion, his writings in other cases suggest that he would impose an even higher

threshold for obstacle preemption—if he would continue to apply the doctrine at all.

(See, e.g., Wyeth v. Levine, supra, 555 U.S. at p. 583 (Thomas, J., conc. in the judg.)

[expressing “increasing[] skeptic[ism]” of “invalidat[ing] state laws based on perceived

conflicts with broad federal policy objectives, legislative history, or generalized notions

of congressional purposes that are not embodied within the text of federal law”].)

94

Chamber of Com. of U.S. v. Whiting, supra, 563 U.S. at p. 607, internal quotation

marks omitted; see also In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod.

Liab. Litig. (9th Cir. 2020) 959 F.3d 1201, 1212 (“The Supreme Court has found obstacle

preemption in only a small number of cases”).

95

Wyeth v. Levine, supra, 555 U.S. at p. 565; see also City of Columbus v. Ours Garage

& Wrecker Serv., Inc. (2002) 536 U.S. 424, 432; CSX Transp., Inc. v. Easterwood (1993)

507 U.S. 658, 663-664 (“In the interest of avoiding unintended encroachment on the

authority of the States, . . . pre-emption will not lie unless it is the clear and manifest

purpose of Congress,” internal quotation marks omitted).

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In the cannabis context, courts are divided as to whether state laws that authorize

and regulate intrastate cannabis cultivation, distribution, and possession pose an obstacle

to accomplishing the CSA’s objectives. Most courts have upheld such laws against

preemption challenges, concluding that state-law authorization of intrastate cannabis

activities does not interfere with federal enforcement of the CSA. In California, the

Court of Appeal has upheld state laws legalizing cannabis for medical purposes against

obstacle-preemption claims. 96 The Court of Appeal and the Northern District of

California have likewise rejected obstacle-preemption challenges to laws implementing

the State’s regulatory regime—including state laws implementing an identification-card

system for qualifying medical cannabis users, and local laws requiring a permit to operate

medical cannabis dispensaries. 97 Outside of California, the Supreme Courts of

Oklahoma, Michigan, and Arizona have similarly rejected preemption challenges to state

laws legalizing and regulating cannabis for both medical and recreational purposes. 98

But other courts and jurists have reached a different conclusion. In particular, the

Oregon Supreme Court and several dissenting justices of the Oklahoma Supreme Court

have reasoned that, by authorizing activities that federal law prohibits, state-law

regulation of intrastate cannabis activities poses an obstacle to accomplishing the CSA’s

objectives. 99 The Minnesota Court of Appeals has reached a similar conclusion. 100 And

one district division of the California Court of Appeal has likewise held that a local

96

See Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at pp. 760-

763; Kirby v. Cnty. of Fresno (2015) 242 Cal.App.4th 940, 963; City of Garden Grove v.

Superior Ct. (2007) 157 Cal.App.4th 355, 380-386.

97

See Cnty. of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at pp. 826-828

(identification cards); City of Palm Springs v. Luna Crest Inc. (2016) 245 Cal.App.4th

879, 885-886 (city permitting requirements); Joe Hemp’s First Hemp Bank v. City of

Oakland (N.D. Cal. 2016) No. C 15-05053 WHA, 2016 WL 375082, at pp. *3-4 (city

permitting requirements).

98

See Ter Beek v. City of Wyoming, supra, 495 Mich. at pp. 14-18 (Michigan medical

cannabis laws); Reed-Kaliher v. Hoggatt (2015) 237 Ariz. 119, 124-125 (Arizona

medical cannabis laws); In re State Question No. 807, Initiative Petition No. 423, supra,

468 P.3d at pp. 391-393 (Oklahoma ballot initiative that would have legalized, regulated,

and taxed recreational cannabis).

99

See Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at pp.

176-186; In re State Question No. 807, Initiative Petition No. 423, supra, 468 P.3d at pp.

396-398 (Kane, J., dis.), 398-400 (Rowe, J., dis.).

100

See Haumant v. Griffin (Minn. Ct. App. 2005) 699 N.W.2d 774, 780-781 (proposal to

authorize medical cannabis distribution centers under city law was preempted by both

state and federal law).

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permitting regime for medical cannabis collectives was preempted—although the

decision was later vacated when the California Supreme Court granted review and then

dismissed the case as moot. 101

Consistent with the authorities that have upheld state laws regulating intrastate

cannabis activities, we believe there would be strong arguments that California’s

authorization and regulation of interstate cannabis commerce would not pose an obstacle

to accomplishing the CSA’s objectives. To begin with, nothing in California’s law would

interfere with the federal government’s ability to enforce the CSA’s prohibition on

cannabis distribution. Although California would remove criminal sanctions for

specified interstate cannabis activities under state law, it “is often the case that state law

decriminalizes conduct that federal law still prohibits. That state prosecutions can no

longer occur in no way bars federal prosecutions.” 102 Nor would California in any way

“undermine federal enforcement of [the CSA’s] prohibition.” 103 State law would not, for

instance, interfere with any investigatory tools of federal law enforcement. 104

To be sure, Congress might prefer that California retain and enforce its state-law

prohibition on interstate cannabis commerce. But as the requestor explains, Congress

See Pack v. Superior Ct. (2011) 132 Cal.Rptr.3d 633; Pack v. Superior Ct. (Cal. 2012)

101

283 P.3d 1159 (dismissing case as moot after city repealed ordinance).

102

Joe Hemp’s First Hemp Bank v. City of Oakland, supra, 2016 WL 375082, at p. *3;

see also City of Garden Grove v. Superior Ct., supra, 157 Cal.App.4th at p. 385 (“[T]here

is no conflict based on the fact that Congress has chosen to prohibit the possession of

medical marijuana, while California has chosen not to. California’s statutory framework

has no impact on the legality of medical marijuana under federal law”); Ter Beek v. City

of Wyoming, supra, 495 Mich. at p. 15 (noting the right of “the people of the State of

Michigan . . . to part ways with Congress” concerning the scope of criminal liability).

103

Ter Beek v. City of Wyoming, supra, 495 Mich. at p. 16; see Reed-Kaliher v. Hoggatt,

supra, 237 Ariz. at p. 124 (“[T]he statute does not prevent federal authorities from

enforcing federal law—it merely provides a limited state-law immunity,” internal

quotation marks omitted).

104

Compare Oregon Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin.,

supra, 860 F.3d at p. 1236 (Oregon statute requiring a court order for federal officials to

enforce a subpoena posed an obstacle to implementation of the CSA, which authorized

the Attorney General to obtain “documents through a subpoena . . . without a court

order”), with United States v. California, supra, 921 F.3d at p. 890 (California law

limiting state law enforcement cooperation with federal immigration officials not

preempted; “the choice of a state to refrain from participation cannot be invalid under . . .

obstacle preemption where . . . it retains the right of refusal”).

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could not, consistent with the Constitution, require the State to do so. 105 “[E]ven where

Congress has the authority under the Constitution to pass laws requiring or prohibiting

certain acts, it lacks the power directly to compel the States to require or prohibit those

acts” as a matter of state law. 106 For example, in Murphy v. National Collegiate Athletic

Association, the Supreme Court invalidated a federal law that required States to maintain

state-law prohibitions on sports gambling. 107 Congress, the Court explained, “may not

simply ‘commandeer the legislative processes of the States by directly compelling them

to enact and enforce a federal regulatory program.’” 108 Likewise, here, Congress cannot

prohibit California from repealing its state-law prohibition on interstate commercial

cannabis activities. 109 Nor can Congress order the State to enforce the CSA’s

prohibition. 110 Accordingly, inasmuch as SB 1326 repeals California’s prohibition of

105

See Request for Opinion, at pp. 2-5.

106

Murphy v. Nat’l Collegiate Athletic Ass’n, supra, 138 S.Ct. at p. 1477.

107

Murphy v. Nat’l Collegiate Athletic Ass’n, supra, 138 S.Ct. at p. 1485.

108

Murphy v. Nat’l Collegiate Athletic Ass’n, supra, 138 S.Ct. at p. 1477, quoting New

York v. United States (1992) 505 U.S. 144, 161. The Court explained that the anti-

commandeering principle “serves as one of the Constitution’s structural protections of

liberty,” “promotes political accountability,” and “prevents Congress from shifting the

costs of regulation to the States.” (Id. at p. 1477, internal quotation marks omitted.)

109

Cf. 54 Ops.Cal.Atty.Gen., supra, at p. 61 (“[T]here is nothing in the Controlled

Substances Act which requires the states to retain their existing laws and penalties

regarding the use and possession of marijuana. For example, California could, consistent

with the federal legislation, repeal all statutes prohibiting possession and use of

marijuana”).

110

See Murphy v. Nat’l Collegiate Athletic Ass’n, supra, 138 S.Ct. at p. 1477 (“‘The

Federal Government’ may not ‘command the States’ officers, or those of their political

subdivisions, to administer or enforce a federal regulatory program,’” quoting Printz v.

United States (1997) 521 U.S. 898, 935); see also Qualified Patients Assn. v. City of

Anaheim, supra, 187 Cal.App.4th at p. 761 (“Preemption theory . . . is not a license to

commandeer state or local resources to achieve federal objectives”); In re State Question

No. 807, Initiative Petition No. 423, supra, 468 P.3d at p. 392 (Murphy “reinforce[s] the

. . . limits of [CSA] preemption”); Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 646

(Kozinski, J., conc.) (the fact that individuals “may be more likely to violate federal law

if the additional deterrent of state liability is removed may worry the federal government,

but the proper response—according to New York and Printz—is to ratchet up the federal

regulatory regime, not to commandeer that of the state”); Cnty. of San Diego v. San

Diego NORML, supra, 165 Cal.App.4th at pp. 827-828 (rejecting obstacle-preemption

challenge to state medical cannabis statute in part due to anti-commandeering concerns).

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interstate commercial cannabis sales, that repeal cannot be said to pose an obstacle to

accomplishing the CSA’s objectives.

Of course, SB 1326 does not just remove California-law sanctions for interstate

commercial cannabis activities, allowing such activities to be carried on free from any

state supervision. As described above, it also requires licensing, tracking, and regulation

of interstate sales under the State’s comprehensive regulatory system. Cannabis products

imported into the State would need to meet or exceed California’s health and safety

standards, thereby protecting consumers from potential contaminants and other health

threats. 111 Imported cannabis that is sold within the State would be subject to restrictions

on advertising and sales, thereby protecting minors and minimizing drugged driving and

similar public health hazards. 112 And interstate cannabis commerce would be taxed, with

the proceeds funding enforcement against illegal activities as well as health and safety

research. 113

As to these aspects of SB 1326—regulating and controlling interstate cannabis

commerce—the preemption analysis is less clear. There are reasonable arguments,

though, that, by licensing and regulating interstate cannabis sales, SB 1326 would not

interfere with the federal government’s ability to accomplish the CSA’s objectives. In

fact, comprehensive state regulation would arguably advance those objectives by

minimizing the worst harms associated with illegal drug trafficking. The United States

Department of Justice itself has suggested as much. In a 2013 memorandum, that

Department outlined the federal priorities in enforcing the CSA, including preventing

distribution of cannabis to minors, preventing cannabis revenues from funding “criminal

enterprises,” and minimizing “drugged driving and . . . other adverse public health

consequences.” 114 The Department concluded that state cannabis laws that “implement[]

strong and effective regulatory and enforcement systems . . . may affirmatively address”

these priorities. 115 Here, California’s laws regulating interstate cannabis commerce

111

See Bus. & Prof. Code, § 26303, subd. (a)(1).

112

See Bus. & Prof. Code, § 26303, subd. (a)(2), (6), §§ 26150-26156, §§ 26070-26071,

§ 26140.

113

See Bus. & Prof. Code, § 26306; Rev. & Tax Code, § 34010 et seq.; Rev. & Tax

Code, § 34019; cf. In re State Question No. 807, Initiative Petition No. 423, supra, 468

P.3d at p. 393, fn. 7 (“Much of the excise tax revenue that would be collected [under the

proposed Oklahoma law to legalize cannabis] would be directed to programs specifically

designed to combat drug abuse,” thereby “serv[ing] to aid one of the primary purposes of

the CSA, not thwart it”).

114

Cole Memorandum, at pp. 1-2.

Cole Memorandum, at p. 3. Although the Cole Memorandum was later revoked, (see

115

Memorandum For All United States Attorneys from Jefferson B. Sessions, III, Attorney

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would arguably be the type of “strong and effective regulatory and enforcement

system[]” that could “affirmatively address” the CSA’s core concerns. 116

Indeed, if the CSA preempted California’s efforts to license and regulate interstate

cannabis activities, the result might be that those activities would be left entirely

unregulated by the State. Tellingly, several preemption challenges in this area have been

brought by parties seeking that very result: the ability to engage in cannabis commerce

unhindered by any state or local regulation (albeit still subject to the federal

prohibition). 117 As the California Court of Appeal observed in rejecting such an obstacle-

preemption claim, “common sense suggests that a strong local regulatory regime” would

“tend to prevent” the most harmful types of cannabis trafficking the CSA was designed to

eliminate. 118 Similarly, here, SB 1326 arguably “creat[es] a tightly regulated . . . market”

that would provide “greater support to the federal goals” than the alternative of

eliminating all state-law restraints on interstate cannabis commerce—an alternative the

General, Marijuana Enforcement (Jan. 4, 2018)), the revocation memorandum did not

express any disagreement with the Cole Memorandum on this commonsense point.

Rather, it concluded that cannabis-specific guidance was simply “unnecessary” in light of

the “well-established principles that govern all federal prosecutions.” (Ibid.)

116

Cole Memorandum, at p. 3. For example, the Legislature concluded that, by

“providing legal and regulated channels for multistate commercial cannabis activities,”

the statute would bring more cannabis commerce “into the legal, regulated market” while

“[p]reventing the illegal diversion of cannabis” from California to other States. (Stats.

2022, ch. 396 (SB 1326), § 5, subd. (a); see also Off. of Ass. Floor Analyses, 3d reading

analysis of Sen. Bill No. 1326 (2021-2022 Reg. Sess.) Aug. 19, 2022, p. 4 [statement of

bill sponsor that authorizing interstate activity is necessary “to stabilize the legal

industry” while avoiding “considerable expansion of the illicit market”].) To the extent

SB 1326 succeeds in reducing illicit cannabis trafficking, it could address several federal

priorities—including preventing cannabis revenues from funding “criminal enterprises,

gangs, and cartels,” and preventing “violence and the use of firearms” in cannabis

distribution. (Cole Memorandum, at pp. 1-2.)

117

See City of Palm Springs v. Luna Crest Inc., supra, 245 Cal.App.4th at pp. 881, 885-

886; Joe Hemp’s First Hemp Bank v. City of Oakland, supra, 2016 WL 375082, at pp.

*3-4.

118

City of Palm Springs v. Luna Crest Inc., supra, 245 Cal.App.4th at pp. 885-886; see

Joe Hemp’s First Hemp Bank v. City of Oakland, supra, 2016 WL 375082, at p. *3 (local

permitting scheme for medical cannabis dispensaries “appears to serve the goal of

controlling the traffic in controlled substances, albeit to a weaker degree than criminal

sanctions (but to a stronger degree than complete deregulation)”).

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State “clearly can” enact. 119 For these reasons, a court could reasonably conclude that SB

1326 would not satisfy the “high threshold” for determining that a state law is invalid on

obstacle-preemption grounds. 120

Notwithstanding these valid legal arguments against obstacle preemption, there

remains a not insignificant risk that a court would reach a different conclusion. As noted

above, some courts and jurists have determined that state laws authorizing and regulating

cannabis activities do pose an obstacle to accomplishing the CSA’s objectives. Most

notably, the Oregon Supreme Court has reasoned that state laws “[a]ffirmatively

authorizing” medical cannabis use—“a use that federal law prohibits”—“stand[] as an

obstacle to the implementation” of the CSA’s purposes and objectives. 121 The court

analogized the CSA to a federal law “prohibit[ing] anyone under the age of 21 from

driving.” 122 Given such a law, the court reasoned, a state law “authoriz[ing] anyone over

the age of 16 to drive and giv[ing] them a license to do so” would pose an obstacle to

Congress’s objective of “keeping everyone under the age of 21 off the road.” 123

Similarly, the court concluded, a state law that “authorizes persons holding medical

marijuana licenses to engage in conduct” that the CSA prohibits poses an obstacle to

Congress’s objective of preventing all types of cannabis use. 124 Citing Emerald Steel, a

Chemerinsky et al., Cooperative Federalism and Marijuana Regulation (2015) 62

119

UCLA L. Rev. 74, 112.

120

Chamber of Com. of U.S. v. Whiting, supra, 563 U.S. at p. 607; see Wyeth v. Levine,

supra, 555 U.S. at p. 565 (preemption requires evidence of “the clear and manifest

purpose of Congress”); Medtronic, Inc. v. Lohr, supra, 518 U.S. at p. 485 (“[B]ecause the

States are independent sovereigns in our federal system, we have long presumed that

Congress does not cavalierly pre-empt” state laws).

121

Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at p. 178.

122

Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at p. 182.

123

Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at p. 182.

124

Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at p. 182.

The specific dispute in Emerald Steel was whether state law required an employer to

accommodate an employee’s medical cannabis use. (See id. at p. 161.) The court

concluded that, to the extent that state law required as much, the law was preempted by

the CSA. (See id. at pp. 161, 178.) Although the decision focused on an employment

dispute, the court’s reasoning could be construed more broadly to suggest that laws that

authorize and regulate voluntary cannabis activities are also preempted. (See id. at pp.

176-186; but see Willis v. Winters (2011) 350 Or. 299, 309, fn. 6 [cautioning against an

overly broad reading of Emerald Steel; the decision “should not be construed as

announcing a stand-alone rule that any state law that can be viewed as ‘affirmatively

authorizing’ what federal law prohibits is preempted”].) In the years since Emerald Steel,

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federal district court in Colorado has held, in the context of a contract dispute, that

“Colorado’s marijuana laws are preempted by” the CSA as well. 125

Three dissenting justices of the Oklahoma Supreme Court have similarly

concluded that state ballot initiatives to legalize and regulate cannabis under state law

would be preempted. 126 Echoing the Oregon Supreme Court, one justice reasoned that,

by “affirmatively authoriz[ing] conduct the CSA expressly forbids,” a state law proposal

to “authorize[] the widespread production, sale, and use of” cannabis would “clearly

present[] an obstacle” to accomplishing Congress’s objectives of prohibiting cannabis

“production, sale, and use.” 127 Another justice reasoned that, by “sanction[ing] and

licens[ing]” cannabis distribution and use, the State would allow such activities to

“proliferat[e]”—making it “virtually impossible for federal law enforcement, operating

with limited resources, to accomplish Congress’s objective . . . to control” cannabis

“production, sale, and use.” 128 In addition, the Minnesota Court of Appeals has

concluded that a local ballot measure to authorize medical cannabis distribution was

preempted by the CSA, albeit in a decision with little analysis. 129

In 2011, a district division of the California Court of Appeal similarly concluded

that a city law licensing medical cannabis collectives was preempted by the CSA. 130 The

court acknowledged that the State could eliminate its existing state-law prohibition on

we are not aware of any decisions adjudicating further preemption challenges to Oregon’s

cannabis laws.

125

Haeberle v. Lowden (D. Colo. 2012) No. 2011CV709, 2012 WL 7149098, at p. *4.

The court concluded that the parties’ contract for the sale of cannabis products was

therefore void as contrary to public policy. (Id. at p. *5.) No appeal was taken, and the

decision does not appear to have been cited by any subsequent judicial authorities.

126

See In re State Question No. 807, Initiative Petition No. 423, supra, 468 P.3d at pp.

396-398 (Kane, J., dis.), 398-400 (Rowe, J., dis.); Tay v. Green (2022) 508 P.3d 431, 436

(Kane, J., dis.), 436-438 (Rowe, J., conc. in part, dis. in part). In both cases, the

Oklahoma Supreme Court majority concluded that the CSA would not preempt the

proposed state law. (See In re State Question No. 807, Initiative Petition No. 423, supra,

468 P.3d at pp. 390-393; Tay v. Green, supra, 508 P.3d at p. 434.)

In re State Question No. 807, Initiative Petition No. 423, supra, 468 P.3d at p. 397

127

(Kane, J., dis.).

In re State Question No. 807, Initiative Petition No. 423, supra, 468 P.3d at p. 399

128

(Rowe, J., dis.).

129

See Haumant v. Griffin, supra, 699 N.W.2d at pp. 780-781.

130

See Pack v. Superior Ct., supra, 132 Cal.Rptr.3d at p. 638.

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cannabis activities without preemption concerns. 131 But the law at issue also established

a permitting regime, requiring medical cannabis businesses to pay the city an annual fee

and participate in a lottery to obtain a business permit. The court concluded that the law

therefore went “beyond decriminalization into authorization,” and was preempted. 132

The decision was later vacated when the California Supreme Court granted review. 133

But because the appeal was dismissed as moot after the city repealed the ordinance, the

Supreme Court never weighed in on the Court of Appeal’s analysis—leaving future

California courts free to adopt similar reasoning.

In light of these decisions, we conclude that the risk of a court holding SB 1326

preempted is significant. A court could adopt the Oregon Supreme Court’s reasoning, for

example, to conclude that SB 1326 frustrated the CSA’s objectives by “[a]ffirmatively

authorizing” interstate cannabis activities that “federal law prohibits.” 134 And a court

could similarly adopt the view of one of the Oklahoma Supreme Court dissents that, by

“sanction[ing] and licens[ing]” cannabis distribution, the State would allow interstate

cannabis activities to “proliferat[e]”—making it “virtually impossible for federal law

enforcement, operating with limited resources, to accomplish Congress’s objective” to

prohibit cannabis sales. 135 Although these decisions concerned regulation of intrastate

cannabis activities, similar reasoning could apply in the context of interstate sales. And

the fact that no court has yet considered preemption in the interstate context only further

increases the risk here, as the validity of laws like SB 1326 remains untested.

Moreover, the United States has suggested that the CSA preemption analysis

might depend, in part, on how state law is implemented and enforced “in practice.” 136 In

briefing before the U.S. Supreme Court, the United States has argued that obstacle

preemption of state cannabis laws could sometimes turn on “the practical efficacy of [the

State’s] regulatory system in preventing or deterring [state-law noncompliant] marijuana

trafficking.” 137 If a future court evaluating a preemption challenge to SB 1326 adopted

131

Pack v. Superior Ct., supra, 132 Cal.Rptr.3d at pp. 651-652.

132

Pack v. Superior Ct., supra, 132 Cal.Rptr.3d at p. 652.

133

See Pack v. Superior Ct., supra, 283 P.3d at p. 1159.

134

Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or. at p. 178.

In re State Question No. 807, Initiative Petition No. 423, supra, 468 P.3d at p. 399

135

(Rowe, J., dis.).

Brief for the United States as Amicus Curiae, Nebraska v. Colorado, No. 144 Orig.

136

(Dec. 2015), at p. 22.

137

Brief for the United States as Amicus Curiae, Nebraska v. Colorado, No. 144 Orig.,

supra, at p. 22.

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that view, its decision could depend on how effectively the statute’s regulatory controls

are ultimately enforced. That possibility only further increases the uncertainty at this

stage, before the law has taken effect.

In sum, while there are strong arguments against preemption here, courts and

jurists have divided over whether the CSA preempts laws regulating intrastate cannabis

activities. 138 And no court has yet considered a preemption challenge to a law, like SB

1326, that authorizes interstate sales. Given the ongoing division of judicial authority

and the lack of any directly relevant precedent, we cannot conclude that the risk of a

future court deeming SB 1326 preempted is so low as to be not “significant.” 139

Likelihood of preemption litigation

Looking beyond the substance of the preemption analysis, several comment letters

advance a different basis for concluding that the legal risk here is minimal. They argue

that, in practice, there is no “significant” risk that any party would sue the State to assert

preemption of SB 1326. We cannot agree.

To begin with, commenters raise two reasons why the federal government would

be unlikely to initiate a preemption suit. First, commenters point to the appropriations

rider discussed above, which prohibits the United States Department of Justice from

using appropriated funds to “prevent [States] from implementing their own laws that

authorize the use, distribution, possession, or cultivation of medical marijuana.” 140

Courts have construed this language to bar the Justice Department “from spending money

on actions that prevent” States from “giving practical effect to their state laws that

authorize the . . . distribution . . . of medical marijuana.” 141 That rider would appear to

prohibit the Justice Department from challenging SB 1326 to the extent it authorizes

interstate cannabis distribution for medical purposes. For this reason, the State’s legal

risk would be lower—in the short term—if it authorized interstate sales for medical uses

138

See Congressional Research Service, State Legalization of Recreational Marijuana:

Selected Legal Issues, at p. 16 (Jan. 13, 2014), https://crsreports.congress.gov/product/pdf

/R/R43034/6 (as of Dec. 19, 2023) (given courts’ “varying approaches,” “the extent to

which state marijuana provisions (whether medicinal or recreational) are preempted by

the CSA is unsettled”).

139

Bus. & Prof. Code, § 26308, subd. (a)(4); see, e.g., Oxford English Dict. (updated

through Sept. 2023) [defining “significant” as “worthy of attention”].

Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, § 531 (Dec. 29, 2022)

140

136 Stat. 4459; see ante, fn. 21.

141

United States v. McIntosh, supra, 833 F.3d at p. 1176; see also United States v.

Bilodeau, supra, 24 F.4th at pp. 712-713.

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rather than for recreational purposes, where the rider does not apply. But even in the

medical context, the rider is only temporary: it expires later this fiscal year. 142 And, as

discussed above, we are not in a position to speculate about whether it will be renewed.

Second, commenters argue that the practical likelihood of a federal suit to

challenge SB 1326 is no greater than the likelihood of a suit under current law. 143 The

CSA, the commenters observe, makes no distinction between intrastate and interstate

sales of controlled substances. 144 Rather, the statute contains a single, undifferentiated

ban on distribution—which is based, in all cases, on Congress’s power to regulate

interstate commerce. 145 Accordingly, the commenters reason that, by authorizing

interstate cannabis commerce, the State would not be exposing itself to any greater risk of

suit than the risk already associated with the State’s existing authorization of intrastate

sales—authorization that, to date, the United States has never challenged.

But it remains possible that the federal government might view interstate cannabis

distribution as posing a greater threat to federal priorities than existing intrastate

activities. Interstate sales might be seen, for example, to create a larger risk of diversion

to neighboring States, or to have a greater potential impact on national markets. For

these or other reasons, the State’s authorization of interstate sales could prompt a federal

challenge, even though its existing laws authorizing intrastate sales so far have not. In

any event, given our statutory charge to analyze only questions of law, we are not in a

position to predict whether a current or future federal administration would decide to

initiate legal action.

142

See ante, fn. 21; see also United States v. McIntosh, supra, 833 F.3d at p. 1179

(although the rider “currently prohibit[s] [the Department of Justice] from spending

funds,” “Congress could appropriate funds” again “tomorrow”).

143

See Rural County Representatives Comment, at p. 7 (arguing that any legal risk to the

State would not be the “result” of “state law authorization” under SB 1326 because the

legal risk is no different than already exists today); California Cannabis Authority

Comment, at p. 3; see also Request for Opinion, at p. 7 (because the CSA “does not

distinguish between interstate and wholly intrastate activity,” there is “no reason to

conclude that [it] subjects a state to greater liability for legalizing and regulating

commercial cannabis activity involving out-of-state licensees, as compared to legalizing

and regulating wholly in-state commercial cannabis activity”).

144

See 21 U.S.C. § 841.

145

See Gonzales v. Raich, supra, 545 U.S. at p. 17 (upholding Congress’s constitutional

authority to prohibit purely intrastate cultivation and use of cannabis given Congress’s

judgment that those activities “have a substantial effect on interstate commerce”).

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Turning to the possibility of preemption suits brought by parties other than the

federal government, commenters contend that, as a matter of law, no other party could

sue the State to allege preemption of SB 1326. 146 As these commenters observe,

numerous courts have held that the Controlled Substances Act does not provide a cause

of action for private parties to sue a State challenging its laws on preemption grounds. 147

And the States of Nebraska and Oklahoma were unsuccessful in attempting to sue

Colorado to assert preemption of that State’s laws authorizing cannabis use. 148

But courts have allowed CSA preemption challenges to proceed in other settings.

For example, the California Court of Appeal has held that California counties can sue the

State to assert CSA preemption of state laws that impose obligations on the counties. 149

Preemption claims have also been adjudicated in disputes between private parties—for

example, where state law required an employer to accommodate or reimburse an

employee’s medical cannabis use. 150 And CSA preemption has been raised in litigation

between local jurisdictions and their residents—for example, where a county ordinance

146

See Rural County Representatives Comment, at pp. 5-6; California Cannabis

Authority Comment, at p. 2. The commenters did not dispute that the federal government

could bring a preemption suit. (See generally Safe Streets All. v. Hickenlooper (10th Cir.

2017) 859 F.3d 865, 898 [“The Supreme Court has reaffirmed time and again that the

United States is empowered to enforce the supremacy of federal law against preempted

State action, and that it may obtain an injunction to that effect”].)

147

See Safe Streets All. v. Hickenlooper, supra, 859 F.3d at pp. 903-904; Sherrell v.

California (E.D. Cal. 2022) No. 2:22-CV-0275-KJM-KJN PS, 2022 WL 1138172, at

p. *3 (collecting cases).

148

Nebraska and Oklahoma first sought to initiate an original action in the United States

Supreme Court, but the Court declined to exercise its original jurisdiction. (See

Nebraska v. Colorado (2016) 577 U.S. 1211.) They then moved to intervene in pending

litigation against Colorado before the Tenth Circuit, but that court held that it lacked

jurisdiction to hear their claims. (See Safe Streets All. v. Hickenlooper, supra, 859 F.3d

at pp. 909-913.)

149

See Cnty. of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at pp. 813-818

(allowing preemption challenge to state law requiring county to operate an identification-

card system for medical cannabis users).

150

See, e.g., Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., supra, 348 Or.

at pp. 172-186; Hager v. M&K Constr. (2021) 246 N.J. 1, 28-42; Appeal of Panaggio,

supra, 174 N.H. at pp. 92, 95-103; Bourgoin v. Twin Rivers Paper Co., LLC, supra, 187

A.3d at pp. 18-22; Musta v. Mendota Heights Dental Ctr., supra, 965 N.W.2d at pp. 321-

328; Garcia v. Tractor Supply Co. (D.N.M. 2016) 154 F.Supp.3d 1225, 1230.

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prohibited cannabis activities that state law allowed. 151 Analogous conflicts could

potentially develop in the context of SB 1326. Although California might not be named

as a defendant in certain types of suits, the State may elect to participate as an amicus or

intervenor to defend its laws against an adverse judgment—as it has done in past CSA

preemption litigation. 152 In light of these possibilities, as well as the potential for a

federal government suit, we cannot conclude that the likelihood of litigation involving the

State is insignificant.

Could state officials be federally prosecuted for implementing SB 1326?

The request letter analyzes an additional risk: that individual state officials who

implement and administer SB 1326 could face federal criminal lability under the

Controlled Substances Act. For example, if a state official issued a license authorizing a

California company to export cannabis, could that official be prosecuted if the company

later distributed cannabis across state lines in accordance with the license? In our view,

state officials would have strong arguments against criminal liability for carrying out

their official duties. But we acknowledge that some state and federal authorities could

support CSA liability for officials in these circumstances. 153

To begin with, the risk of state officials being federally prosecuted could be seen

as a “legal risk to the State of California” within the meaning of Business and Professions

Code section 26308(a)(4). To be sure, the State itself would not face prosecution; the

151

See, e.g., Kirby v. Cnty. of Fresno, supra, 242 Cal.App.4th at pp. 947, 961-963;

Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at pp. 756-763; see

also, e.g., City of Palm Springs v. Luna Crest Inc., supra, 245 Cal.App.4th at pp. 885-886

(preemption challenge to city permitting requirement for medical cannabis dispensaries);

Joe Hemp’s First Hemp Bank v. City of Oakland, supra, 2016 WL 375082, at pp. *3-4.

152

See, e.g., City of Garden Grove v. Superior Ct., supra, 157 Cal.App.4th at p. 364

(“[T]he Attorney General of California sought leave to file an amicus curiae brief” given

that the City was “challenging the very constitutionality of California’s medical

marijuana laws”); cf. White Mountain Health Ctr., Inc. v. Maricopa Cnty. (Ariz. Ct. App.

2016) 241 Ariz. 230, 235-236 (State of Arizona intervened in preemption litigation

between private company and county over zoning of cannabis business).

153

Although we need not analyze the issue, we also note that cannabis activity prohibited

by the CSA may qualify as “racketeering activity” under the Racketeer Influenced and

Corrupt Organizations Act (RICO). (See generally Safe Streets All. v. Hickenlooper,

supra, 859 F.3d at p. 882.) The Oklahoma Supreme Court has concluded that a proposed

state law authorizing and regulating cannabis activities would not expose the State or its

officials to RICO liability. (See In re State Question No. 807, Initiative Petition No. 423,

supra, 468 P.3d at pp. 394-396.)

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individual officer—not the State—would face any criminal sanctions. But the State’s

ability to implement SB 1326 and retain a workforce could be chilled and undermined if

necessary state personnel faced federal prison sentences for doing their jobs. The State

might also expend resources defending its employees against criminal charges. 154 If the

State provided for an official’s defense, then the criminal proceeding would involve a

direct financial “conflict between the State . . . and the federal government,” with the

State funding the defense and the United States funding the prosecution. 155 As noted, the

requestor analyzes the prosecution of state officials as a relevant legal risk here. 156

As to whether state officials could be successfully prosecuted, the requestor offers

several reasons why they could not. First, the requestor believes “it is doubtful” that a

state official administering state cannabis laws would satisfy the elements for a CSA

violation. 157 “At least in the absence of activities that could constitute outright

possession or distribution,” the requestor explains, “any such liability would presumably

be incurred under conspiracy or aiding-and-abetting theories.” 158 Both theories would

require that the state official acted with the intent for another party to commit an act

which is a CSA violation. 159 In light of that requirement, courts have concluded in

154

See Gov. Code, § 995.8 (the State “may provide for the defense of a criminal action

. . . brought against an employee” if the action “is brought on account of an act or

omission in the scope of [the employee’s] employment” and the State “determines that

such defense would be in the best interests of the [State] and that the employee . . . acted,

or failed to act, in good faith, without actual malice and in the apparent interests of the”

State); e.g., Lexin v. City of San Diego (2013) 222 Cal.App.4th 662, as mod. on denial of

reh’g (Jan. 22, 2014).

155

Sen. Floor, Hearing on Sen. Bill. No. 1326 (Aug. 25, 2022), Sen. Caballero, at 2:09:20

(statement of bill author that, under section 26308(a), “interstate cannabis agreements . . .

cannot go into effect until there is an appropriate assurance that the agreements will not

cause conflict between the State of California and the federal government”).

156

See Request for Opinion, at pp. 5-7.

157

Request for Opinion, at p. 6.

158

Request for Opinion, at p. 6.

159

A person is liable for aiding and abetting a federal crime under 18 U.S.C. section 2

where they “(1) take[] an affirmative act in furtherance of [the] offense, (2) with the

intent of facilitating the offense’s commission.” (Rosemond v. United States (2014) 572

U.S. 65, 71; see also White Mountain Health Ctr., Inc. v. Maricopa Cnty., supra, 241

Ariz. at p. 246 [“[T]o prove aiding and abetting under federal law, it is necessary that a

defendant . . . wishes to bring about [the venture], that he seek[s] by his action to make it

succeed,” internal quotation marks omitted].) A conspiracy conviction under 18 U.S.C.

section 371 requires proof that two or more individuals “reach[ed] an agreement with the

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various situations that state and local officials would not incur CSA liability for

implementing state laws regulating cannabis. 160

But courts have sometimes held that the intent requirement for aiding and abetting

or conspiracy is satisfied through knowing assistance—i.e., where “a person actively

participates in a criminal venture with full knowledge of the circumstances constituting

the charged offense.” 161 Applying that view, the Supreme Courts of Minnesota and

specific intent that the underlying crime be committed by some member of the

conspiracy.” (Ocasio v. United States (2016) 578 U.S. 282, 288, italics and internal

quotation marks omitted.)

160

See Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at pp. 759-

760 (“[G]overnmental entities do not incur aider and abettor . . . liability by complying

with their obligations under the state medical marijuana laws”); White Mountain Health

Ctr., Inc. v. Maricopa Cnty., supra, 241 Ariz. at p. 246 (“[W]e fail to see how County

officials who obey state law in passing a zoning ordinance . . . or processing applications

for zoning clearance . . . can be liable as aiders or abettors”); Joe Hemp’s First Hemp

Bank v. City of Oakland, supra, 2016 WL 375082, at p. *3 (city permitting scheme for

medical cannabis dispensaries did not create aiding-and-abetting liability “because the

permit scheme itself does not violate the Controlled Substances Act but rather regulates

certain entities that do”); City of Garden Grove v. Superior Ct., supra, 157 Cal.App.4th at

p. 368; Cnty. of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at p. 825,

fn. 13. The requestor also cites the Ninth Circuit’s decision in Conant v. Walters. (See

Request for Opinion, at p. 6.) There, the court held that a doctor would not necessarily

incur aiding-and-abetting liability by “recommending” cannabis to a patient—a

requirement for the medical use of cannabis under California law—even if the physician

anticipates that the patient will use the recommendation to acquire cannabis. (Conant v.

Walters, supra, 309 F.3d at pp. 635-636.) The court further stated, however, that aiding-

and-abetting liability would attach if “the physician intends for the patient to use” the

recommendation to obtain cannabis. (Id. at p. 635, italics added.) The court’s analysis

suggests that, in our circumstances, liability might turn on the specific facts concerning

the state official’s intent in carrying out their job functions.

161

Rosemond v. United States, supra, 572 U.S. at p. 77; see LaFave, 2 Subst. Crim. L.

(3d ed.) § 13.2(d), Knowing assistance or encouragement (describing division in case law

concerning whether knowing assistance satisfies the mens rea for aiding and abetting); id.

at fn. 113 (the question is “quite similar” for conspiracy). The issue could arise, for

instance, where a “lessor rents with knowledge that the premises will be used to establish

a bordello” (id., § 13.2(d)), or “the owner of a gun store . . . sells a firearm to a criminal,

knowing but not caring how the gun will be used” (Rosemond v. United States, supra,

572 U.S. at p. 77, fn. 8 [reserving the question of the store owner’s liability for

“incidentally facilitat[ing],” but not “actively participat[ing] in,” the “criminal venture”]).

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Maine have held that an employer who reimburses an employee for cannabis used to treat

a work-related injury is liable for aiding and abetting the employee’s CSA violation—

even if state law required the employer to provide the reimbursement. 162 In the view of

those courts, the employer would satisfy the intent requirement by actively facilitating the

employee’s cannabis use with full knowledge of the resulting CSA violation. 163 Here, a

federal prosecutor could attempt to invoke a similar intent theory to argue, for example,

that a state official who grants a cannabis export license to a private company is liable for

knowingly facilitating the company’s CSA violation.

Moreover, to the extent state officials personally handled cannabis in the course of

their job duties, they may directly satisfy the elements of a CSA violation. The CSA

broadly defines unlawful distribution as the intentional transfer of a controlled substance

from one person to another. 164 Applying that definition, the Colorado Supreme Court has

reasoned that if state law enforcement officials returned a resident’s medical cannabis,

the officials would thereby “distribute marijuana in violation of the CSA.” 165 In the

court’s view, officials would be liable even though state law required them to deliver the

cannabis because the CSA prohibits distribution “without regard to whether state law

permits [cannabis] use.” 166 Here, a prosecutor could similarly argue that if state officials

handled and returned cannabis while implementing SB 1326—for example, to inspect

162

See Musta v. Mendota Heights Dental Ctr., supra, 965 N.W.2d at p. 327

(“[M]andating [the employer] to pay for [the employee’s] medical cannabis . . . makes

[the employer] criminally liable for aiding and abetting the possession of cannabis under

federal law”); Bourgoin v. Twin Rivers Paper Co., LLC, supra, 187 A.3d at p. 19. Both

courts concluded that the laws requiring reimbursement were therefore preempted under

an impossibility analysis. Other courts have rejected preemption challenges to similar

laws, concluding that employers would not incur aiding-and-abetting liability. (See, e.g.,

Appeal of Panaggio, supra, 174 N.H. at pp. 97-100.)

See Musta v. Mendota Heights Dental Ctr., supra, 965 N.W.2d at p. 325; Bourgoin v.

163

Twin Rivers Paper Co., LLC, supra, 187 A.3d at p. 19.

164

See 21 U.S.C. § 841, subd. (a)(1) (it is unlawful to “knowingly or intentionally”

“distribute . . . a controlled substance”); 21 U.S.C. § 802, subd. (11) (“distribute” means

“to deliver (other than by administering or dispensing) a controlled substance”); id.,

§ 802, subd. (8) (“delivery” means “the actual . . . transfer of a controlled substance”).

165

People v. Crouse, supra, 388 P.3d at p. 42.

166

People v. Crouse, supra, 388 P.3d at p. 42. The California Court of Appeal, in

contrast, has suggested that a state official could only “be found in violation of 21 U.S.C.

§ 841(a)(1) for distributing a controlled substance . . . if he or she intended to act as a

drug peddler rather than a law enforcement official.” (City of Garden Grove v. Superior

Ct., supra, 157 Cal.App.4th at p. 390.)

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interstate shipments—they would thereby commit distribution under the CSA. Officials

in this scenario might also satisfy the elements for unlawful possession. 167

Second, the requestor argues that, even if state officials satisfied the requirements

for a CSA violation, they would be shielded from liability by the CSA’s immunity

provision. As relevant here, section 885(d) of title 21 of the United States Code provides

that “no civil or criminal liability shall be imposed by virtue of [the CSA] . . . upon any

duly authorized officer of any State . . . who shall be lawfully engaged in the enforcement

of any law or municipal ordinance relating to controlled substances. 168 “This provision

protects accepted law enforcement tactics such as sting . . . operations in which officers

handle” drugs, or “the transfer of suspected drugs to . . . a clerk of court in the course of

presenting evidence at trial.” 169

In the cannabis context, most courts have held that section 885(d) protects state

and local officials who implement state regulatory laws—such as by granting zoning

permits, or returning a resident’s cannabis—even if the official’s actions would otherwise

constitute a CSA violation. 170 But the Colorado Supreme Court has concluded otherwise,

construing section 885(d) to provide immunity only if an official’s actions would not

otherwise violate the CSA. 171 Given the division of authority in this area, it would be

167

See 21 U.S.C. § 844, subd. (a) (prohibiting possession of a controlled substance);

21 U.S.C. § 841, subd. (a)(1) (prohibiting possession with intent to distribute a controlled

substance).

21 U.S.C. § 885, subd. (d). The provision similarly immunizes “any duly authorized

168

Federal officer lawfully engaged in the enforcement of [the CSA].” (Ibid., italics added.)

169

United States v. Cortes-Caban (1st Cir. 2012) 691 F.3d 1, 20-21.

170

See White Mountain Health Ctr., Inc. v. Maricopa Cnty., supra, 241 Ariz. at p. 246

(section 885(d) immunizes local officials who implement state medical cannabis laws by

“promulgating reasonable regulations” and “processing applications for . . . zoning

permits”); City of Garden Grove v. Superior Ct., supra, 157 Cal.App.4th at p. 390 (where

state law required police officers to return a resident’s cannabis, “the police would be

entitled to immunity under” section 885(d) against any charge of CSA distribution); State

v. Okun (Ariz. Ct. App. 2013) 231 Ariz. 462, 466; State v. Kama (2002) 178 Or.App.

561, 565; Smith v. Superior Ct. (Cal. Super. Ct. App. Div. 2018) 28 Cal.App.5th Supp. 1,

6.

171

People v. Crouse, supra, 388 P.3d at pp. 42-43. The court emphasized that section

885(d) applies only to officers who are “lawfully” engaged in the enforcement of state

law, concluding that conduct is “lawful” only if it complies with both state and federal

law, including the CSA. (Id. at p. 43.) Applying that construction, the court held that if a

state official returned a resident’s cannabis (as required by state law), section 885(d)

would not shield the official from liability because returning the cannabis would

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uncertain whether officials who implemented SB 1326 would receive immunity under

section 885(d) if their actions otherwise gave rise to CSA liability.

Finally, it is not clear that the United States Department of Justice would choose to

prosecute state officials for actions taken to implement state laws. We are not aware of a

single such prosecution ever occurring—even during periods when the federal

government more actively enforced the CSA against cannabis activities. 172 If a future

federal administration ever decided to increase CSA enforcement, the historical record

suggests it would be more likely to do so by either prosecuting private individuals who

commit clear-cut CSA violations, or by seeking to enjoin enforcement of state law on

preemption grounds. And the congressional appropriations rider discussed above would

currently limit the Department’s ability to prosecute state officials who implemented SB

1326 in the medical-cannabis context. 173 Still, we cannot predict whether the rider will

be renewed, or whether a future federal administration might adopt a more aggressive

approach by prosecuting state officials. Indeed, two U.S. Attorneys have previously

suggested that such a prosecution could be possible. 174

constitute distribution under the CSA. Several dissenting justices disagreed, construing

section 885(d) to provide immunity whenever state officials are acting pursuant to state-

law authority. (Id. at p. 44.) The dissent reasoned that the majority’s view “leads to

absurd results” because officers would not receive immunity in cases where section

885(d) was clearly intended to apply—such as “when a law enforcement officer provides

marijuana to a target in a sting operation.” (Id. at p. 45.) Indeed, the majority’s reading

would appear to render section 885(d) a nullity, as the provision would shield officials

from CSA liability only when they had no liability to begin with.

172

See City of Garden Grove v. Superior Ct., supra, 157 Cal.App.4th at p. 390 (“As a

practical matter, . . . it seems exceedingly unlikely that federal prosecutors would ever

attempt to haul a local constable into federal court for complying with a state judicial

order calling for [the officer to return] a qualified patient’s medical marijuana. We are

not aware of a single instance in which this has ever occurred”); White Mountain Health

Ctr., Inc. v. Maricopa Cnty., supra, 241 Ariz. at p. 246 (finding “no evidence of a

credible threat of prosecution” for “County officials who obey state law in passing a

zoning ordinance . . . or processing applications for zoning clearance”).

173

See ante, fn. 21; United States v. McIntosh, supra, 833 F.3d at pp. 1175-1179.

174

In 2011, the U.S. Attorneys for the Eastern and Western Districts of Washington sent

a letter to the Governor of Washington concerning legislative proposals to license

cannabis cultivation and sales. (See Pack v. Superior Ct., supra, 132 Cal.Rptr.3d at

p. 650, fn.27, citing U.S. Attorney Jenny A. Durkan and U.S. Attorney Michael C.

Ormsby, letter to Governor Christine Gregoire, Apr. 14, 2011.) The letter stated that

“state employees who conduct[] activities mandated by the . . . legislative proposals . . .

would not be immune from liability under the CSA.” (Ibid.)

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In sum, if state officials were federally prosecuted for implementing SB 1326, we

believe they would have strong arguments that they cannot be held liable for carrying out

their official duties. But given the authorities that could support CSA liability in these

circumstances, some legal risk would remain. We therefore conclude that the possibility

of state officials facing criminal prosecution only further increases the State’s legal risk

from authorizing interstate cannabis sales.

CONCLUSION

We conclude that state-law authorization for commercial cannabis activity

between out-of-state licensees and California licensees could “result in significant legal

risk to the State of California under the federal Controlled Substances Act” within the

meaning of Business and Professions Code section 26308(a)(4).

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