Robert Mikos

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Boston University Law Review

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cannabis legalization, interstate commerce, state restrictions, constitutionality


Food and Drug Law | Law | State and Local Government Law


By the end of 2020, more than thirty states had legalized cannabis containing tetrahydrocannabinol ("THC") for at least some purposes.' Each of these states has authorized firms to produce and sell cannabis within its borders. In 2019, those state-licensed firms did a brisk business, selling more than $13 billion worth of cannabis.

However, none of that $13 billion of cannabis is now being sold (legally) across state lines. Instead, each legalization state now has its own, hermetically sealed local cannabis market, supplied entirely by cannabis cultivated and processed inside the state. For example, the $1.75 billion worth of cannabis that was sold by Colorado-licensed stores in 2019 was all grown and processed by firms located inside Colorado. These state-based markets for cannabis contrast with the national markets that now exist for virtually every other consumer good. From bananas to beer, few of the goods we see on store shelves today are grown, processed, or manufactured locally.

The lack of interstate commerce in cannabis is commonly attributed to the federal government's marijuana ban. Notwithstanding the dramatic liberalization of state law over the past twenty-five years, federal law continues to ban the production, possession, and sale of marijuana. The conventional wisdom is that interstate commerce in cannabis--and the development of a national cannabis market--cannot develop until Congress or the President repeals the federal ban and removes this barrier.



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