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Pilots: Leave The Gummies At Home!

With the legalization of marihuana and/or cannabis in many states, products containing THC or CBD are now readily available for purchase and consumption in those states.  One of the more common products is “gummies.”
However, it is important to remember that even though these products may be legal in certain states, on a federal level marihuana is still a controlled substance as defined by the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. § 802).  (Yes, I know marihuana is also spelled “marijuana,” but that’s the way it is spelled in the federal statutes/regulations).  And, in the absence of a prescription, it is still illegal in those states who have not yet legalized its availability and/or use.
So, while it may be legal for a pilot to purchase and consume THC or CBD products in one state, which may not be the case in another state, and it is still not permitted on a federal level.  And when it comes to operating an aircraft, federal law will preempt state law.  For a pilot operating an aircraft carrying gummies and/or flying across state lines, this can be both a confusing and a tricky issue.  And the FAA isn’t making things any easier.
Federal Law
The federal laws applicable to these situations include the following:
Title 49 U.S.C. § 44710(b)(2) provides that the Administrator of the Federal Aviation Administration shall issue an order revoking an airman certificate issued an individual under section 44703 of this title if the Administrator finds that–(A) the individual knowingly carried out an activity punishable, under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year; (B) an aircraft was used to carry out or facilitate the activity; and (C) the individual served as an airman, or was on the aircraft, in connection with carrying out, or facilitating the carrying out of, the activity.
It goes on to state that the FAA doesn’t have the authority to review whether an airman actually violated the law related to a controlled substance.  And if the airman’s certificate is revoked under Section 44710, then the FAA may not thereafter issue an airman certificate to the individual, ever.  This is a lifetime ban.
Under 49 U.S.C. § 44106(b)(1), the FAA shall revoke the certificate of registration for an aircraft issued to an owner and any other certificate of registration that the owner of the aircraft holds the FAA finds that—(A) the aircraft was used to carry out, or facilitate, an activity that is punishable by death or imprisonment for more than one year under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance); and (B) the owner of the aircraft permitted the use of the aircraft knowing that the aircraft was to be used for the activity described in clause (A) of this paragraph.
If the aircraft owner is not an individual (e.g. is a corporation or limited liability company), the owner is deemed to have permitted the use of the aircraft knowing that the aircraft was to be used for the prohibited activity only if a majority of the individuals who control the entity or who are involved in forming the major policy of the entity permitted the use of the aircraft knowing that the aircraft was to be used for the prohibited activity.
14 C.F.R. § 91.19(a) provides that no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.  However, section (b) of the regulation states that paragraph (a) does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.
The FAA’s Position
And what is the FAA’s position on these situations?  In its Enforcement Program – Order 2150.3C, FAA states that “[o]perating an aircraft with knowledge that illegal controlled substances are carried in the aircraft or allowing an aircraft to be operated under such circumstances” is a violation that generally warrants revocation of an airman’s certificate.  Similarly, a drug conviction for other than simple possession would also subject the airman to revocation in the absence of some evidence of rehabilitation and assurance of future compliance.
In practice, the FAA pursues enforcement against the airman under both FAR 91.19(a) and also 49 U.S.C. 44710(b)(2).  And where the airman is also the aircraft owner (or owner of the entity that is the registered owner), the FAA is revoking the aircraft’s registration.
This is unfortunate given that many airmen, who are not lawyers (and even some who are lawyers), are confused about, or don’t understand, whether they can or cannot have marihuana products in their aircraft when they are otherwise complying with state marihuana laws that are inconsistent with federal law.
And while the FAA may argue that its hands are tied, at least with respect to the federal statutes, rather than the FARs, certainly the FAA’s prosecutorial discretion in these cases could and should take into account and show some understanding in these cases where confusion is clearly present.  However, based upon my experience representing airmen in this situation, it appears so far that the FAA is pursuing these cases with its investigative and bureaucratic blinders on and very little, if any, consideration is given for the underlying facts in each case.
Conclusion
The takeaway is this:  Do not fly your aircraft with marihuana products on board your aircraft.  Even if they are legal in the state where you live or the state to which you are flying, don’t do it.  Leave the gummies at home.

The post Pilots: Leave The Gummies At Home! appeared first on Shackelford, Bowen, McKinley & Norton, LLP.

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