Cannabusiness Advisory

What Is the Rohrabacher-Farr Amendment, and Why Is It Important?

September 6, 2017


Introduced in 2003, the Rohrabacher-Farr amendment prohibits the Justice Department from spending funds to interfere with the implementation of state medical marijuana laws. Its original text stipulated that:

“None of the funds made available in this Act to the Department of Justice may be used, with respect to the states of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such states from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

In December 2014, the amendment was inserted, without a vote, as a rider during final negotiations of the $1.1 trillion “cromnibus” spending bill. Soon after, President Obama signed the bill into law. To remain in effect, it was required that the amendment be renewed each fiscal year.

In October 2015, a court ruling by U.S. District Court Judge Charles Breyer lifted an injunction against a California dispensary to operate, providing supporters of the amendment with a major legal victory. Judge Breyer vehemently rebuked the Justice Department’s interpretation of the law, characterizing it as “counterintuitive and opportunistic,” and noting that it “defies language and logic” and “tortures the meaning of the statute.” The Justice Department initially appealed the ruling, but withdrew its appeal shortly thereafter.

On December 18, 2015, Congress appropriated funds through the fiscal year ending September 30, 2016, and included essentially the same rider as the year before, adding Guam and Puerto Rico and changing “prevent such States from implementing their own State laws” to “prevent any of them from implementing their own laws.” Although the amendment was not voted on by the House in 2016, it passed the Senate Appropriations Committee on April 21, 2016, and was later renewed in spending bills that were signed into law on September 29, December 10, and April 28, 2017.

In August 2016, a Justice Department interpretation of Rohrabacher-Farr was again rejected, this time by the Ninth Circuit Court of Appeals. In a case that consolidated the appeals of 10 medical cannabis providers in California and Washington, a three-judge panel was tasked with examining whether the amendment prohibited the Justice Department from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct entirely permitted by state medical marijuana laws, and who fully complied with such laws.

The case essentially pitted the federal Controlled Substances Act (the statute under which the defendants were being prosecuted) against state medical marijuana laws. The ruling was unanimous among the panel members: the Court held that the Justice Department was prohibited from spending funds from specific appropriations acts for prosecutions of the named defendants, who were compliant with the state-specific laws. The decision remains binding in the nine western states that comprise the Ninth Circuit.

On May 5, 2017, the amendment* was renewed until September 30, 2017, as part of a $1 trillion spending bill signed into law by President Trump, who added a signing statement that read:

“Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories. I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”

Some have interpreted this statement as the administration’s reservation of the right to ignore the amendment and enforce federal law, which designates marijuana as contraband for any purpose.† On July 27, 2017, the Senate Appropriations Committee approved inclusion of the amendment in the CJS appropriations bill for fiscal year 2018.

As discussed in our prior post, on August 8, 2017, Judge Seeborg, sitting in the U.S. District Court for the Northern District of California, issued a decision that is without question the largest feather in the cap of cannabis proponents. He fully affirmed the ruling in McIntosh and blocked federal prosecutors from pursuing their claims against cannabis manufacturers and distributors whose activities were arguably compliant with state laws. Judge Seeborg also ruled that the defendants’ actions were legal in light of California’s laws governing the growth and sale of medical marijuana. In dismissing the federal prosecutor’s claims, Judge Seeborg expressly stated that the “defendants’ conduct strictly complied with all relevant conditions imposed by California law on the use, distribution, possession, and cultivation of medical marijuana.”

The significance of this decision relates in no small part to its timing: It was rendered under the Trump Administration, which has been conflicted, at best, about the legalization of cannabis. It also follows Attorney General Jeff Sessions’ statement that “we don’t need to be legalizing marijuana” and lament that the amendment “inhibited the Justice Department’s authority to enforce the Controlled Substances Act.” Sessions continued to argue that “it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime. The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”

The tension between the executive and judicial branches of government on this issue will no doubt continue as more prosecutions are appealed under the amendment. We will continue to provide updates as they occur.


* In January 2017, the amendment was renamed to Rohrabacher-Blumenauer, as Representative Earl Blumenauer assumed the role of co-sponsor upon the retirement of Sam Farr

 There is one caveat to this statement: the Controlled Substances Act mandates that the “manufacture, distribution or possession of marijuana is a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study.”

receive news & alerts

Yes! I’d like to receive updates with firm news and insights that are relevant to me!