Authored By: Robbin S Rahman

 Robbin S. Rahman is an attorney at the Barber Law Firm in Little Rock and has over 17 years of experience as a corporate lawyer helping businesses solve critical financial, operational and legal problems

Originally Published By Arkansas Lawyer

Introduction

On January 4, 2018, the United States Attorney General, Jeff Sessions, sent the marijuana industry into a panic. In a memorandum addressed to all U.S. Attorneys, Mr. Sessions reminded America that marijuana remains illegal under federal law and, in the process, rescinded the “Cole Memorandum,” an Obama-era directive to federal prosecutors to de-prioritize the prosecution of marijuana industry participants in states where it has been legalized. Importantly, the Cole Memorandum served as a sort of safe harbor around which much of the marijuana industry had been built. Whether intentional or not,1 the effect of Mr. Sessions’ memo was to dump a bit of cold water on an industry that, for the past several years, has enjoyed growing bipartisan support2 and an increasingly large footprint. For example, approximately 44 states, the District of Columbia and the territories of Puerto Rico and Guam, have enacted laws permitting the cultivation, sale and use of marijuana in some form, culminating most recently in the launch of California’s fully legal recreational marijuana market on January 1, 2018.

In light of Mr. Session’s memo, the industry and the nation has been forced to turn their attention back to fundamental issues of federalism: whether the federal government’s authority to outlaw marijuana through its power to regulate interstate commerce remains superior to the powers reserved to the states under the Tenth Amendment to protect the welfare, safety and health of the public.3 Against the backdrop of a potential Constitutional crisis, state regulators are making final preparations for Arkansas’ nascent medical marijuana industry to become a living, breathing reality.4 Very soon, the interpretation and application of the Arkansas Medical Marijuana Amendment of 2016 (the “AMMA”) will be of critical importance to business owners, employees, regulators, lawyers and ordinary citizens. Nowhere are these issues more difficult and more important than in the Arkansas workplace. This article takes a brief look at the AMMA’s workplace provisions, how similar provisions have been addressed by courts in other states, and what such interpretations may mean for Arkansas.

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