Selling Marijuana from California to other states


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Selling Marijuana from California to other states

Selling marijuana from California to other states

DUI Under the Influence of Marijuana
As marijuana dispensary license attorneys, and members of the National Organization for Reform of Marijuana Laws (NORML), we have noted that a number of clients, or people in the cannabis industry have begun not only shipping and selling marijuana and cannabis products, extracts, and concentrates to illegal states (that is, states that have not yet passed any laws making marijuana legal). They have been very vocal about the legality of this being based upon declaring residents of those states California Patients.
Selling marijuana from California to other states is allowed, they claim, that the Full Faith and Credit clause requires the states where it illegal, to give California Laws full faith and credit, as required by the US Constitution, despite the problems with banking and marijuana businesses and marijuana licenses.
Some marijuana businesses are even setting up tele-med visits, via Skype or FaceTime, with California doctors, obtaining a medical recommendation, and encouraging their new “patients” to set up ‘collectives’ through them in in the states where marijuana is legal. They indeed are selling marijuana from California to other states, and are shipping cannabis products to these states.

Selling marijuana from California to other states – the US Constitution Full Faith and Credit Clause

Here’s how another jurisdiction (the Oregon Court of Appeals, which is part of our Ninth Circuit Federal Courts here in California), handled a similar argument.

The appeals court stated that the legal arguments underlying defendant’s motion to suppress — that the Full Faith and Credit Clause and the Privileges and Immunity Clause preclude his arrest and prosecution — are wrong. Article IV, section 1, of the United States Constitution provides, “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.”

Defendant argues that this clause requires Oregon to apply the CCUA, a “public act,” to California residents when they are in Oregon. According to defendant, Oregon must do so because one state’s laws apply in a sister state unless the home state law “conflicts” with the host state’s law, and California’s medical marijuana law does not conflict with Oregon’s medical marijuana law. The state, citing Franchise 619*619 Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003), responds that the clause “does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”

We need not decide which interpretation applies in this case, however, because defendant’s argument is fundamentally misconceived. Even if defendant could persuade us that the clause means what he says it does, it would avail him nothing.

The CCUA by its terms provides nothing more than a defense against the enforcement of certain California marijuana laws:

“Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”

California Health and Safety Code § 11362.5(d). The CCUA does not (and could not) provide a defense against enforcement of Oregon’s marijuana laws in Oregon. Put another way, the Full Faith and Credit Clause requires (at most) that a state give effect to rights established between parties that arise from judgments, agreements, or statutes originating in other states. See Delehant v. Board on Police Standards, 317 Or. 273, 282, 855 P.2d 1088 (1993). The CCUA establishes (again, at most) rights between qualified California residents and the state of California — not the state of Oregon. Thus, in this case, Oregon does give full faith and credit to the CCUA, because Oregon does not (and could not) enforce California’s marijuana laws against defendant.

State v. Berringer, 229 P. 3d 615 – Or: Court of Appeals 2010, online for free, here:
So it would appear that the cannabis businesses that are shipping, hoping that becuase it’s legal in one state, it should be considered legal in another, would have an invalid legal argument.
However, in response to this case, Oregon amended the rules to allow out of state patients to register in Oregon, a law which continued until the Legislature repealed it after Marijuana Legalization in 2015.
Likewise, that may not be a problem for any distribution here in California.  Selling marijuana from California to other states has legal problems inherent in the differences in state laws.  Business owners that deal in Marijuana should be careful when shipping to other states where it is not legal.

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