Federal and State Law
Although marijuana is illegal under the federal Controlled Substances Act, it has been legalized by some states for medical purposes. Each state law has specific requirements for an individual to legally obtain marijuana.
New Jersey passed the Compassionate Use Medical Marijuana Act in January 2010. The NJ Department of Health proposed rules to implement this law. NJ's Office of Legislative Services (OLS) issued two letters on July 16, 2010 and October 12, 2010 explaining that NJ's 2006 Smokefree Air Act (NJ SFAA) supercedes this law which means that medical marijuana cannot be smoked in locations that are required to be smokefree by NJ state, county or local laws. Having a prescription for medical marijuana does not give someone the right to smoke where smoking is illegal. Read this January 23, 2012 news article about the arrest of a man by Newark airport Port Authority police for smoking medical marijuana in an airplane bathroom. Read a March 15, 2012 news article about a couple in California arrested for smoking medical marijuana in a smokefree plaza. If a business that is exempted from the NJ SFAA declares their property to be smokefree under N.J.S. 2C:33-13, then medical marijuana cannot be smoked on that property.
Employment drug laws have been enforced in other states when an employee has tested positive for marijuana through a company drug test even if the employee smokes marijuana with a doctor's recommendation outside of the workplace. Read the recent rulings from the State Supreme Courts of Washington, Michigan and Oregon.
Secondhand Smoke Concerns
Secondhand smoke from marijuana has been found to be as or more toxic than tobacco smoke. Read a December 18, 2007 news article about the comparison study of mainstream and sidestream tobacco and marijuana smoke published in 2008 in the journal Chemical Research in Toxicology. Marijuana smoke is classified by the State of California to cause cancer in humans. Read a news article from June 1, 2009 when California added marijuana smoke to its list of known carcinogens.
Impact on Multi-Unit Housing
Read an article by the California Law Firm of Swedelson & Gottlieb which concludes that marijuana smoke (like tobacco smoke) cannot cause or create a nuisance which interferes with another resident's quiet enjoyment of their unit or home. More details are discussed in their fact sheet entitled Accommodating Medical Marijuana Users Does Not Mean They Can Cause a Nuisance to Other Residents.
A February 2011 The U.S. Department of Housing and Urban Development (HUD) memo Medical Marijuana Use In Public Housing and Housing Choice Voucher Programs requires Public Housing Authorities (PHAs) to establish a written policy on medical marijuana usage:
- For new admissions: “The Quality Housing and Work Responsibility Act (QHWRA) of 1998 (42 U.S.C. § 13661) requires that PHAs administering the Department's rental assistance programs establish standards and lease provisions that prohibit admission into the PH and HCV programs based on the illegal use of controlled substances, including state legalized medical marijuana. State laws that legalize medical marijuana directly conflict with the admission requirements set forth in QHWRA and are thus subject to federal preemption.”
- For existing residents: QHWRA requires PHAs to establish occupancy standards and lease provisions that will allow the PHA to terminate assistance for use of a controlled substance. However, the law does not compel such action and PHAs have discretion to determine continued occupancy policies that are most appropriate for their local communities. PHAs can also determine whether to deny assistance to or terminate individual medical marijuana users, rather than entire households, for both applicant and existing residents when appropriate. PHAs have discretion to determine, on a case-by-case basis, the appropriateness of program termination of existing residents for the use of medical marijuana.”
The memo mentions FDA approved marijuana synthetics (Marinol and Cesamet) that are legal under federal law and can be used in public housing and voucher programs.
Regarding reasonable accommodation requests allowing individuals with disabilities to smoke marijuana in their HUD units, read the January 2011 HUD memorandum Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing which concludes that "owners must deny admission to those applicant households with individuals who are, at the time of consideration for admission, using medical marijuana." The memo does allow PHAs to use discretion with current residents, but not on the basis of a reasonable accommodation request.
Read Restricting the Use of Medical Marijuana in Multi-Unit Residential Settings: Legal and Practical Considerations prepared in 2010 by the University of Michigan Tobacco Research Network which also concludes that reasonable accommodation requests need not be granted. The paper also concludes that "multi-unit residential property owners are not legally obligated to permit the use of medical marijuana in individual units, even in jurisdictions such as Michigan in which use of medical marijuana is permitted by state law".
Colorado has recently passed legislation to decriminalize small amounts of non-medicinal marijuana. A Colorado smokefree advocacy group, www.mysmokefreehousing.org, has issued a summary about the law and secondhand marijuana smoke in multi-unit housing.
Last update: 4/12/13