Analysis Indicates Pennsylvania State-Run Cannabis Sales Likely Preempted By Controlled Substances Act

As the Pennsylvania legislature considers paths to an adult use cannabis program, the Pennsylvania Cannabis Coalition considered analyses regarding whether the state-run distribution and sales model could be preempted by federal law. In those analyses, the case law distinguishes legalization programs in which the state is not mandated to take action that creates a "positive conflict" with the Controlled Substances Act from those that courts have found to be preempted by the CSA. For example, in People v. Crouse, 388 P.3d 39 (Colo. 2017), the Colorado Supreme Court found that a state constitutional amendment requiring police officers to return seized cannabis to patients prescribed it who were acquitted of state charges was preempted by the CSA. Under the constitutional amendment, officers would be required to "distribute" cannabis, directly violating the CSA and creating a "positive conflict" between federal and state law.