Is Marijuana Legal, Illegal, or Decriminalized Near You? And What Does That Mean?
Key takeaways:
Laws around legal cannabis (marijuana) use are rapidly changing nationwide. At the federal level, though, cannabis containing THC is still illegal.
At the state level, the legal status of cannabis can vary between fully illegal, legal for medicinal use, fully legal, or decriminalized — or a combination of these laws.
State laws vary widely around legal use or decriminalization for medical or personal use, so it’s best to learn your local laws before buying any cannabis products.
Cannabis, or marijuana, remains an illegal drug at the federal level. Nevertheless, almost half of U.S. adults have tried cannabis at some point in their lives. Also, all but three states — Kansas, Idaho, and Nebraska — have laws that allow for legal use of cannabis in some form. This can be for either personal use or medical reasons.
Some states, like Florida, have a mixed legal status where cannabis use is illegal for personal reasons but you can use it medicinally. A little over two-thirds of Americans live in an area where medical cannabis is available. And around a quarter of Americans live in a state that allows recreational use.
As the laws continue to change across the country and cannabis use continues to rise, it’s good to know what these terms mean: legal, illegal, or decriminalized. Read on to find out.
A Cannabis Inhaler For Rapid Pain Relief, Expert Care Included
For aches, pains, and stress. Clinician-led guidance included. Shipped right to your door. Get 10% off with code TRYEO.
Must be 21 years or older to purchase. Cannabis is not recommended for women who are pregnant or nursing or those who are suffering from bipolar disorder or schizophrenia. Cannabis use may increase risk of falls. Always consult with your doctor before beginning any new medical treatment.
How are controlled substances classified in the United States?
The Controlled Substances Act (CSA) determines how medicines and drugs are classified by the federal government, according to the balance of benefits and risks of each substance. An annual list of substances and their classification is published every year. There are five classifications, called schedules.
The strictest classification of is a Schedule I Controlled Substance. Drugs in this category have no accepted medical use. They also have a high potential for misuse and dependence. Some examples are heroin, synthetic cannabinoids like spice or K2, and cannabis.
The least dangerous substances are Schedule 5 Controlled Substances. These are drugs that are considered to have genuine medical value and low risk for misuse. Examples are prescription-grade cough syrups that contain certain amounts of codeine.
Schedule 1 substances have the highest risk for misuse and dependence. Part of the debate around cannabis laws is how dangerous of a substance cannabis actually is and if its classification is accurate. There’s a similar debate over certain psychedelics, which are also classified as Schedule I, despite emerging evidence of health benefits.
Is marijuana classified as a controlled substance?
The CSA defines cannabis as a Schedule I Controlled Substance. According to this, the federal government says cannabis has a high potential for misuse and no accepted medical use.
Only the Food and Drug Administration (FDA) can approve a drug for medical use. The FDA has not approved cannabis for any medical treatment. Part of the reason for this is that unlike most medications, cannabis is not a single chemical produced by a single drug manufacturer.
Read more like this
Explore these related articles, suggested for readers like you.
However, the FDA has approved two medications made from lab-made versions of THC:
Dronabinol (Marinol)
Nabilone (Cesamet)
The FDA has also approved one drug made from the cannabis plant: cannabidiol (Epidiolex).
What are the differences between federal and state marijuana laws?
Federal government laws about cannabis are in direct conflict with the laws of several states and territories. Remember, the federal government classifies cannabis as a Schedule I Controlled Substance. This means it is a federal crime to have and use cannabis in any form, even for medical purposes. It’s also illegal to grow and sell it.
However, many states have laws that allow for legal use of cannabis or have decriminalized its use. What this means for you depends on what state you’re in.
As of February 2022, medical cannabis is legally available in 37 states and 4 territories, plus the District of Columbia. Cannabis is also legally available for recreational use in 18 states, 2 territories, and the District of Columbia.
Many states have a mix of legal medical use and decriminalized personal use.
What’s the difference between decriminalization and legalization?
Legalization
Some states have decided to legalize cannabis for recreational or personal use. If you’re in a state with legal cannabis — California or Oregon, for example, plus several others — you can buy cannabis from state-licensed stores. You can use it like you would other legal drugs, like alcohol or tobacco.
In legal markets, there are still restrictions on how you can use cannabis, though. For example, there is an age requirement for using cannabis (21 years of age). It is also illegal to drive a car while under the influence of cannabis. You typically cannot use it in public or in a place that serves alcohol. Tourists can also have a hard time finding places to use cannabis. This is because hotels generally don’t allow cannabis use.
Remember: Cannabis may be legal in your state, but it is still illegal at the federal level. This means that even if you are in a legal state, if you set foot onto federal property (like a National Park), cannabis possession is a federal offense.
Decriminalization
Decriminalized use of cannabis means that the drug is illegal in that state. There are no licensed cannabis stores. However, you won’t be criminally prosecuted for personal use or the possession of small amounts.
Some decriminalized states will still prosecute if you possess larger quantities. This amount can vary from state to state. In New Mexico, for example, possession of up to 2 oz of cannabis by anyone under age 21 is a civil offense. However, having 2 oz to 8 oz is a misdemeanor. Possession of over 8 oz of cannabis in New Mexico means you could be charged with a felony.
In states where cannabis is decriminalized, there may be penalties if you are caught using or possessing cannabis. These could be something like fines or required drug education classes.
What can happen if there’s a conflict between federal and state marijuana laws?
In the U.S., the laws of the federal government are higher than the laws of the states. (This is because of the Supremacy Clause of the Constitution.) However, the 10th Amendment of the Constitution gives police powers to the states. This means that a state can decide what laws its police force will maintain.
In short, it’s always illegal to use cannabis. But, if you are in a state that allows for legal use, the local or state law enforcement agencies will not prosecute you. This is because local or state police do not enforce federal laws.
Can you buy cannabis online or travel with it across state lines?
Because cannabis is illegal at the federal level, it’s illegal to bring it over state lines. This means you can’t drive with it in your car over a state line, even if it’s between two states with legal cannabis, like Oregon and Washington. It also means you can’t buy cannabis online from one state and have it sent to you in another.
Can you fly with cannabis?
If you’re thinking about flying with your cannabis, it’s important to know about the Transportation Security Administration (TSA) and how it works. The TSA is required to notify law enforcement anytime it suspects a local, state, or federal law has been broken. While the TSA won’t search specifically for cannabis, it may involve authorities if cannabis is found in the regular screening process at airports.
Some airports, like LAX in Los Angeles, state that airport police have no jurisdiction to arrest anyone in possession of cannabis if they are following the laws of that state. However, these policies note that TSA screening stations are under federal jurisdiction. Also, travelers are responsible for understanding the laws of other states they may be traveling to.
It’s also illegal to bring cannabis on any airplane in the U.S. All airplanes — public and private — are regulated by the Federal Aviation Administration (FAA). This is still true if the flight is within a state that allows for legal cannabis use. The FAA also regulates your plane if you’re traveling to a state or even a foreign country that allows for legal cannabis use.
To sum up: The federal government has outlawed all cannabis use, and the federal government has jurisdiction on airplanes. Some airlines have clear policies that state they will refer passengers to authorities if they find out they are traveling with cannabis.
What about drug tests for work?
Even if cannabis is legal where you live, you can still be subjected to pre-employment drug screening. Employers have the right to deny you a job if you test positive for cannabis.
Employers are also allowed to fire you for using cannabis, after random drug testing or if you have an accident on the job. Although there are several federal laws that prohibit workplace discrimination and unfair termination, these protections do not extend to people who use cannabis.
Some states, like New Jersey, do provide employment protections for medical cannabis use. Nevada now requires employment protection for medical cannabis use and has some protections for recreational use. However, any federal jobs would not fall under these protections. Job sites that rely on federal grant money may not be allowed to extend these protections either.
What about medical marijuana?
Because cannabis is illegal at the federal level, doctors are not able to prescribe this drug. This is true even in states where cannabis is legal for medical use. In these scenarios, doctors can recommend — but not prescribe — cannabis for medical purposes.
In a state that has legalized cannabis for medical use:
A doctor can give you (or any patient) a written recommendation to use cannabis.
You can then buy medical cannabis from a licensed medical dispensary.
Most states require patients to join a registry or obtain an ID card. Very few states recognize ID cards from other states.
In some states, this also means you can grow your own medical cannabis.
Possession and cultivation limits vary widely across states. But, in general, medical patients are allowed to possess and grow more than adult/personal users.
What about CBD?
CBD stands for cannabidiol, a chemical that comes from the cannabis plant. CBD is only regulated by the FDA in the form of Epidiolex. This is a drug that is used to treat epilepsy in children. It was also removed from the CSA in 2020.
Most CBD products come from hemp, which is the legal definition of cannabis plants that contain less than 0.3% percent THC. (THC, or tetrahydrocannabinol, is the chemical in cannabis that makes you high.) The 2018 Farm Bill legalized hemp and hemp-derived products containing less than 0.3% THC, so they are not considered Controlled Substances.
CBD-hemp and THC-cannabis are regulated differently. This impacts how you are able to use CBD products. Some of these differences are:
Hemp-derived CBD is legal in some form in every state, but some states restrict how it can be used or purchased.
It can be shipped across state lines and ordered from the internet, but make sure you are buying from safe sources.
You can also travel on an airplane and across state lines with CBD. But you still need to follow state guidelines on use. What’s legal in one state may not be legal in another.
At the federal level, legal CBD that comes from cannabis can be shipped or sold across state lines. However, CBD products that are classified as dietary supplements can’t be.
The bottom line
The legal landscape surrounding cannabis use in the U.S. is rapidly evolving. State laws vary and can be at odds with federal laws. So, it’s important to understand how both federal and state laws apply to you, whether you are at home or traveling. This helps you make informed decisions about your lifestyle choices and healthcare options.
If you or someone you know struggles with substance use, help is available. Call SAMHSA’s National Helpline at 1-800-662-HELP (4357) to learn about resources in your area.
Keep in mind that cannabis is legal in some states for recreational and/or medicinal use, but not in others. Cannabis is still illegal under federal law. Before you use cannabis products, find out the laws in your state.
Why trust our experts?
References
Ashton, L. (2022). Is CBD oil legal? Legal status of CBD in 50 states in 2022. CFAH.
Cannabis Training University. (n.d.). The cannabis policies for national parks.
Clark, P. A., et al. (2011). Medical marijuana: Medical necessity versus political agenda. Medical Science Monitor.
Congressional Research Service. (2021). The Controlled Substances Act (CSA): A legal overview for the 117th Congress.
Constitution Annotated. (n.d.). Amdt10.1 Tenth Amendment: Historical background. Congress.gov.
Delta Airlines, Inc. (n.d.). Prohibited or restricted items: Tobacco, e-cigarettes or marijuana.
DISA Global Solutions Inc. (2022). Map of marijuana legality by state.
Diversion Control Division. (n.d.). Clarification of the new drug code (7350) for marijuana extract. U.S. Department of Justice Drug Enforcement Administration.
Diversion Control Division. (n.d.). Controlled substance schedules. U.S. Department of Justice Drug Enforcement Administration.
Drug Enforcement Administration. (2020). Drug fact sheet: Marijuana/cannabis.
Federal Aviation Administration. (2020). Marijuana can’t fly.
Gregorio, J. (2014). Physicians, medical marijuana, and the law. AMA Journal of Ethics.
Hartman, M. (2021). Cannabis overview. National Conference of State Legislatures.
Jones, J. M. (2021). Nearly half of U.S. adults have tried marijuana. Gallup.
KOLD News 13. (2021). Arizona’s first 420-friendly hotel opens in Phoenix.
Kronaizl, D. (2020). Two-thirds of Americans have access to medical marijuana; one-fourth have access to recreational usage. The Center Square.
Legal Information Institute. (n.d.). Supremacy Clause: Current doctrine. Cornell Law School.
LAX. (n.d.). LAX marijuana policy. Los Angeles World Airports.
MedlinePlus. (2022). Cannabidiol (CBD).
National Center for Complementary and Integrative Health. (2019). Cannabis (marijuana) and cannabinoids: What you need to know.
National Conference of State Legislatures. (2022). State medical cannabis laws.
Nichols, D. E. (2016). Psychedelics. Pharmacological Reviews.
NORML. (n.d.). Legalization.
Svrakic, D. M., et al. (2012). Legalization, decriminalization & medicinal use of cannabis: A scientific and public health perspective. Missouri Medicine.
Transportation Security Administration. (n.d.). Medical marijuana.
U.S. Department of Transportation. (n.d.). DOT “CBD” notice.
U.S. Food and Drug Administration. (2020). FDA and cannabis: Research and drug approval process.
U.S. Food and Drug Administration. (2020). FDA approves first drug comprised of an active ingredient derived from marijuana to treat rare, severe forms of epilepsy.
U.S. Food and Drug Administration. (2021). FDA regulation of cannabis and cannabis-derived products, including cannabidiol (CBD).
United States Drug Enforcement Administration. (n.d.). The Controlled Substances Act.
What’s Legal Oregon. (n.d.). Educate before you recreate.
