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Isn’t marijuana illegal under federal law? If so, how can Oregon legalize it? <br />Marijuana is classified under the federal Controlled Substances Act as a Schedule I drug, which <br />means it is unlawful under federal law to grow, distribute, possess or use marijuana for any <br />purpose. Individuals who engage in such conduct could be subject to federal prosecution. Thus <br />far, courts have upheld a state’s authority to decriminalize marijuana for state law purposes. <br />Oregon did so for medical marijuana in 1998 and for recreational marijuana in 2014. What that <br />means is someone who grows, distributes, possesses or uses marijuana within the limits of those <br />state acts is immune from state prosecution, but might still be subject to federal prosecution if <br />federal authorities desired to do so. <br />The U.S. Drug Enforcement Agency has indicated that it may consider reclassifying marijuana in <br />the future. To date, this has not occurred nor is there any indication that any reconsideration by <br />the DEA would result in a reclassification. <br />Can we as a city council use our home rule authority and vote to re-criminalize <br />marijuana within our city? <br />No. A city’s home rule authority is subject to the criminal laws of the state of Oregon. As noted <br />above, the OMMA and Measure 91 provide immunity from criminal prosecution for individuals <br />who are acting within the parameters of those laws. Consequently, a council cannot remove the <br />immunity provided by state law. <br />The immunity provided by state law does not extend to all crimes committed while engaging in <br />marijuana-related activities. For example, the immunity provided by state law does not apply to <br />the crime of driving under the influence. Likewise a city should be able to impose criminal <br />penalties against a person engaging in a marijuana-related activity that violates another law, such <br />as a business license ordinance, zoning or anti-smoking regulations. However, before doing so, a <br />city should work with its city attorney to confirm that the state law immunities do not apply. <br />BANS <br />Can my city ban the growing, processing, and sale or transfer of marijuana? <br />ORS 475B.800 provides a process, explained below, for cities to ban six of the seven types of <br />marijuana activities registered or licensed by the state. Specifically, the six types of marijuana <br />activities that cities can ban under ORS 475B.800 are: <br />Medical marijuana processors (preparingedibles, skin and hair products, concentrates and <br />extracts); <br />Medical marijuana dispensaries; <br />Recreational marijuana producers (growers); <br />Recreational marijuana processors (preparing edibles, skin and hair products, concentrates <br />and extracts); <br />Recreationalmarijuana wholesalers; and <br />Recreational marijuana retailers. <br />The seventh marijuana activity registered by the state is the growing of medical marijuana. The <br />bills the Legislature enacted in 2015 are silent on whether a city can ban medical marijuana <br />growers from operating. (State law does expressly place limits on the number of plants and the <br />Frequently Asked Questions About Local Regulation of Marijuana 3 <br />May 24, 2016 <br /> <br />