Traveling with Marijuana: California Law vs. Federal Law

The history of marijuana legalization in California reaches all the way back to 1972's Proposition 19, which aimed to decriminalize the sale and possession of cannabis. Although Prop 19 failed on the ballot, the state's long journey to legalization in 2016 made it a trailblazer in the field of legal weed, on both medical and recreational levels.

Like any good hike through Yosemite, Joshua Tree or Big Sur, however, that journey comes with a few good bumps along the way. While California state law allows for legal possession and consumption of marijuana with a few exceptions, marijuana is still illegal under federal law, making for plenty of confusion among cannabis users. Thankfully, at least in terms of travel, the Transportation Security Administration (TSA) chimes in with a fairly clear stance on what is and isn't allowed for air travelers.

In November of 2016, 57 percent of California voters passed the Adult Use of Marijuana Act, more commonly known as Proposition 64. While medical marijuana had long been legal in the state by that point, Prop 64 finally legalized the recreational possession and use of marijuana statewide.

Of course, the keyword here is "statewide," and that's where the confusion comes in. Despite the Golden State's historic decision, marijuana remains illegal according to federal law, at least as of late 2019.

Under the scheduling system it uses to classify various controlled substances, the United States federal government labels marijuana as a schedule 1 drug. Controversially, this means that the federal government perceives cannabis as a drug with no medical value and a high risk of abuse. Per the federal scheduling system, heroin is also a schedule 1 drug.

So, if the federal government puts heroin in the same category as marijuana, how can it possibly be legal and unpunished in various U.S. states? The key lies in the federal government's willingness to prosecute and its precedents for prosecution.

The truth is that the U.S. is still figuring out the dissonance between state and federal marijuana law. Under the Obama administration, the federal government required that states with legalized marijuana bar children from using the drug and – of paramount importance for travelers – did not allow it to cross state lines, but was otherwise not known to interfere in recreational legalization on a state-by-state basis. As many trailblazing states first legalized during Obama's tenure, this set a legal precedent.

In contrast, the Trump administration initially tightened the previous approach, allowing federal prosecutors to punish marijuana usage even in legal states. In April of 2018, however, the administration abandoned its Justice Department's initiative to crack down on recreational marijuana. While the somewhat nebulous relationship between federal and state marijuana laws remains in flux as of late 2019, Senator Cory Gardner of Colorado told the Los Angeles Times in 2018 that "President Trump has assured me that he will support a federalism-based legislative solution to fix this states' rights issue once and for all."

More than that, while scheduling often helps determine criminal penalties, it's not the be-all, end-all rule book for criminal punishment. Oftentimes, individual courts are able to acknowledge the generally accepted low risk of marijuana, which may result in more relaxed penalties in cases of prosecution.

But where does all of this federal-versus-state back and forth leave people who wish to travel with cannabis in tow? For American air travelers, the Transportation Security Administration enforces travel restrictions, making them the first legal barrier and a natural place to start.

As of 2019, TSA's official stance falls in line with federal regulations. This means that marijuana or cannabis products remain illegal for air travel. More specifically, products that contain more than 0.3 percent tetrahydrocannabinol (or THC) on a dry-weight basis are illegal. In addition to products with less than 0.3 percent THC, FDA-approved products are excepted.

Per TSA guidelines, any suspected violations of state, local or federal laws are to be reported to their respective enforcement agencies. However, TSA itself notes that the agency's "screening procedures are focused on security and are designed to detect potential threats to aviation and passengers." While this means that TSA security officers do not explicitly search for marijuana or other illegal drugs, if any illegal substance is discovered during security screening, TSA will refer the issue to the appropriate law enforcement agent.

Read More: California Marijuana Travel Regulations: Crossing Borders With Marijuana

Per TSA guidelines, this means that airline passengers cannot travel with cannabis products, even when flying to a state where recreational marijuana is legal. These guidelines apply to both carry-on and checked baggage.

What about traveling from a state with legal marijuana, like California? The issue here lies in transporting cannabis to another state, even if it's legal in the state of departure. Because marijuana isn't legal under federal law, travelers cannot legally transport it to another state.

This applies even when traveling from one state that allows possession of marijuana to another that allows it, such as flying from California to Oregon or Colorado. The legal hang-up in this case is that travelers are attempting to cross state lines with a federally illegal product.

The TSA's stance on traveling with marijuana extends to medical marijuana, too. And, yes, this includes some cannabidiol – or CBD – products, though the latter issue is a little confusing.

Both medical and CBD-infused products fall under the TSA's regular travel rules, which means that even medical marijuana products that contain more than 0.3 percent THC are a no-go. Even if travelers have a license or other necessary paperwork, they're still not in compliance with federal law when flying with medical marijuana.

While CBD products also fall under the TSA's "no more than 0.3 percent THC" rule, it's a bit of a moot point, as by law CBD products can only contain up to 0.3% THC in the first place.

For road trippers in the Golden State, it's illegal to drive under the influence of cannabis. Californians aged 21 and over are free to privately indulge in recreational marijuana across the state, but in a 2018 interview with the Los Angeles Times, Jonathan Havens, co-chairman of the cannabis law practice at Saul Ewing Arnstein and Lehr, recommends keeping marijuana sealed and in the trunk (not the passenger seat) when driving a vehicle.

Marijuana usage is also prohibited at many popular and iconic tourist attractions, as California law prohibits the consumption or possession of cannabis on federal lands, including national parks. Similarly, consuming cannabis in common travel hotspots like bars, restaurants and other places of employment is illegal in Cali, where legal consumption is limited to private property with permission from the property owner.

In the view of the TSA, federal law – which still views both recreational and medical marijuana as illegal – takes precedent over state laws, such as the legalization of recreational pot in California. So, even if the TSA isn't actively searching travelers' luggage for marijuana, it will report finding cannabis to law enforcement – and as most travelers know, the TSA does a whole lot of rifling through bags.

With this in mind, state laws typically offer cannabis users the most protection when they buy cannabis in the state in which it's legal, use it in the state in which it's legal and leave it in that state before boarding an airplane or hopping in a car to cross state lines. Keep in mind that these laws apply only to travel within the United States, though, as international laws vary extremely widely.

As Catharine Hamm writes for the Los Angeles Times in 2018, "You can't take it with you. Actually, you can. But it's not a good idea when you're traveling, especially for the risk-averse."