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Government’s Crackdown On Medical Cannabis Not Unconstitutional, Federal Judge Rules

DEAlogo Government’s Crackdown On Medical Cannabis Not Unconstitutional, Federal Judge RulesA federal judge in Sacramento this week dismissed a federal lawsuit filed in November by members of the NORML Legal Committee against the US Department of Justice, US Attorney General Eric Holder, and DEA Director Michele Leonhart. The lawsuit (read it here), one of four filed simultaneously in the state’s four federal districts, argues that the Justice Department’s ongoing crackdown against medical marijuana providers and distributors in California is in violation of the Ninth, Tenth, and Fourteenth Amendments to the US Constitution because the use of cannabis therapeutically is a fundamental right. Petitioners also argue, using the theory of judicial estoppel, that the Justice Department had previously affirmed in public memos and in statements made in federal court that it would no longer use federal resources to prosecute cannabis patients or providers who are compliant with state law.

On Wednesday, US District Judge Garland Burrell, Jr., rejected those arguments and and granted the respondent’s dismissal motion. He denied petitioners request for public hearings prior to making his ruling.

Judge Burrell rejected plaintiffs’ Ninth and Tenth Amendment challenges, finding: “Since the Supreme Court has held the that CSA’s (federal Controlled Substances Act) categorical prohibition of the possession, manufacturing, and distribution of marijuana does not exceed Congress’ authority under the Commerce Clause (Article I Section 8, Clause 3 of the US Constitution), plaintiffs do not have a viable …. claim.”

He also rejected plaintiffs’ equal protection arguments, finding that the Justice Department’s actions in California mimic efforts the federal government has taken against “similarly situated individuals” elsewhere. Judge Burrell also cited court rulings finding that defendants in previous challenges have failed to meet the “heavy burden of proving the irrationality of the schedule I classification of marijuana.”

Finally, Judge Burrell dismissed plaintiff’s judicial estoppel clam, which argues that defendants’ “recent crackdown … against medical cannabis patients flouts the representations made on the record by the Department of Justice” in public memos and statements in court. Responding to this challenge, Judge Burrell determined, “Since judicial estoppel does not apply unless ‘a party’s later position [is] ‘clearly inconsistent with its earlier position,’ and the Ogden memo does not contain a promise not to enforce the CSA, defendants’ enforcement of the CSA is not inconsistent.”

Commenting on the ruling, Attorney David Michael of San Francisco, who along with Matt Kumin and Alan Silber were the lead attorneys in these four challenges, said “We are disappointed, but not discouraged, that the District Courts have thus far denied us the relief we had sought. They are constrained by existing precedent, and the result was not unexpected. It is the Ninth Circuit where we hope to find a receptive audience, and, with the Lawrence v. Texas decision, we may also have a more receptive audience in the Supreme Court, should the issue go there.”

Judges for the Ninth Circuit had previously determined in Raich v Gonzalez: “For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, … (it) may be upon us sooner than expected.”

NORML Blog, Marijuana Law Reform

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NORML Board Of Directors’ Declaration: Federal Blowback Against Medical Cannabis Must Cease

APPROVED UNANIMOUSLY BY BOARDFreedom is NORML 1 Line 300x58 NORML Board Of Directors’ Declaration: Federal Blowback Against Medical Cannabis Must Cease

At the recently concluded Annual Meeting and in conjunction with ‘National Medical Marijuana Week‘, the NORML Board of Directors condemned recent and unjustifiable federal law enforcement efforts against medical cannabis providers in America.

The Board continues to endorse the reform of cannabis laws nationally, as well as the progressive medical initiatives inaugurated and carried out in California and other states.

We remain thoroughly supportive of cannabis freedom fighters and the medical cannabis community and its citizens, whose cause is just.

Since its founding in 1970, NORML has continued to support, and has never abandoned, the righteous efforts of freedom fighters, responsible consumers, and the medical cannabis community.

We have supported decriminalization measures, medicinal users, patients’ rights, student alliances, and a wealth of progressive reformers who all share the ultimate common goal of an end to Cannabis Prohibition.

We will never back down in these efforts.

NORML Blog, Marijuana Law Reform

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NORML PSA: Willie Nelson for Ending Federal Marijuana Prohibition

default NORML PSA: Willie Nelson for Ending Federal Marijuana Prohibition

www.norml.org – NORML Advisory Board Member Willie Nelson speaks out in support of the “Ending Federal Marijuana Prohibition Act of 2011.” This legislation, if passed, would allow states the freedom to set their own marijuana laws independent of the federal government and pursue legalization.
Video Rating: 4 / 5

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The Next State In The Federal Government’s Crosshairs Is Colorado

DEAlogo The Next State In The Federal Government’s Crosshairs Is ColoradoIn recent months, the federal Justice Department has engaged in concerted efforts to crack down on the proliferation of medical cannabis related activities in states that allow for its therapeutic use under state law, including California, Montana, and Washington.

Now, according to a CBS News report, the next state on the federal government’s ‘hit list’ is Colorado — arguably the state with the most comprehensive and stringent statewide regulations governing medical cannabis activities. These regulations explicitly license state-authorized cannabis dispensaries, of which there are now some 700 operating statewide.

Nonetheless, the imprimatur of the state apparently carries little if any weight with the Obama administration at this time — despite promises (reiterated before Congress just last week by US Attorney General Eric Holder) that such prosecutions are “not a (federal) priority” and that the Justice Department only intends to target those entities who “use marijuana in a way that’s not consistent with the state statute.”

Predictably, today’s CBS special report tells a different story.

Crackdown On Colorado’s Medical Pot Business On The Horizon
via CBS News Denver

Federal authorities are planning to crack down on the medical marijuana business in Colorado on a large scale for the first time.

Warning letters will be going out to dispensaries and grow facilities near schools, CBS4 investigator Rick Sallinger has learned. So far it’s not clear how soon that will happen.

Dispensaries that receive the letters will be given 45 days to shut down or move operations. If they don’t comply, they will be shut down by the U.S. attorney in Colorado.

The dispensaries who are set to be targeted are the ones that are located within 1,000 feet of schools. That measurement is being used because that distance already appears in federal law as a factor in drug crime sentencing.

The move comes after the Justice Department sent out a memo clarifying that marijuana has been and remains illegal under federal law despite what has taken place with state regulations. Colorado is one of 16 states where medical marijuana laws have been approved.

Many of the state’s dispensaries that are closer than 1,000 feet to a school have already been approved to be there under local laws. They usually have been grandfathered in.

… Robert Corry, an attorney who represents dispensaries, said medical marijuana operations are now strictly regulated under Colorado state laws.

“The federal apparatus here has better things to do,” said Corry. “My reaction would be the federal government is essentially declaring war on the voters of our state (who) passed a Constitutional amendment.”

U.S. attorneys in California recently announced in a separate medical marijuana crackdown that they would be targeting landlords who rent retail space to dispensaries, as well as dispensary owners themselves.

Does anyone really believe that this is an appropriate use of scarce federal resources? Or that these actions are in any way consistent with Obama’s public pledge to cease utilizing “Justice Department resources to try and circumvent state laws on this issue?” I didn’t think so.

If the federal government is truly concerned about the diversion of
medical marijuana or its potential abuse in states that have authorized it then it would be better served to encourage — rather than to discourage — statewide and local efforts to regulate these actions accordingly. The Obama administration’s enforcement actions in California, Colorado, and elsewhere will only result in limiting adults’ regulated, safe access to cannabis therapy. It will also cost local jobs and needed tax revenue, and likely result in hundreds — if not thousands — of unnecessary criminal prosecutions.

Legislating medical marijuana operations and prosecuting those who act in a manner that is inconsistent with state law and voters’ sentiment should be a responsibility left to the state and local officials, not the federal government. It is time for this administration to fulfill the assurances it gave to the medical cannabis community and to respect the decisions of voters and lawmakers in states that recognize its therapeutic efficacy.

NORML Blog, Marijuana Law Reform

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Breaking News: Two Governors Petition Federal Government To Allow For Medical Marijuana

The governors of Rhode Island and Washington have both signed a petition asking the Obama Administration to re-schedule cannabis from Schedule I to Schedule II, effectively ending the federal government’s total prohibition on medical patients having lawful and controlled access to organic cannabis products.

“The situation has become untenable for our states and others. The solution lies with the federal government.”

Both Governors Lincoln Chafee and Christine Gregoire of Rhode Island and Washington respectively were, ironically, two state governors who chose to heed to the warnings issued by the federal government in a Department of Justice memo (known as the ‘Cole memo‘) and not move forward with otherwise popular medical cannabis law reforms in their states. rethinklogohd12 300x125 Breaking News: Two Governors Petition Federal Government To Allow For Medical Marijuana

However, no more! These two governors’ action today is a very important turning point in the history of cannabis law reform in America.

Contrastingly, the governors of Colorado, Maine, New Jersey, New Mexico and the city council of D.C. all largely ignored the federal government and moved forward with their states’ respective medical cannabis programs.

NORML began the entire legal and political debate about ‘medical marijuana’ in 1972 when it launched a 24-year re-scheduling effort, that is still laboring on all these years.

Therefore to finally witness governors so frustrated with the absurdly mis-scheduled cannabis plant as being dangerous, addictive and possessing no medical utility (wrongly grouped with heroin and LSD) that they are reaching out to the president to fix this clear injustice and warping of science is a clear demonstration that the friction between the federal government’s recalcitrance on accepting medical cannabis (or for that matter ending Cannabis Prohibition in total) and state politicians who can no longer justify towing the fed’s ridiculous ban on physician-prescribed cannabis to sick, dying and sense-threatened medical patients is coming to a dramatic conclusion in a government showdown, one that may bode well for the larger Cannabis Prohibition reforms needed, festering just below the surface of the public’s mass acceptance of medical access to cannabis.

NORML Blog, Marijuana Law Reform

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NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown

NORML Attorneys Matt Kumin and David Michael, with attorney Alan Silber, have filed suit in the four federal districts in California to challenge the Obama Administration’s recent crackdown on medical marijuana operations in the Golden State. Aided by expert testimony from NORML Deputy Director Paul Armentano and research from California NORML Director Dale Gieringer, the suits seek an injunction against the recent federal intrusion into state medical marijuana laws at least and at most a declaration of the unconstitutionality of the Controlled Substances Act with respect to state regulation of medical marijuana.

*** JOIN US AT 1:00 PM PACIFIC TODAY FOR NORML SHOW LIVE’S INTERVIEW WITH ATTORNEYS KUMIN AND MICHAEL. You can view our live stream at http://live.norml.org or by visiting the “Audio/Video” link on the menu above ***

The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers.  They point to the courts’ dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) “promised a federal judge that it had changed its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients.”  So after 2009, California providers had reason to believe that the federal government had changed its policy.  The legal argument is called ‘judicial estoppel’, which basically means that courts can’t hold true to a fact in one case and then disregard it in another.

Kumin, Michael, and Silber also argue the government has engaged in ‘equitable estoppel’, which most people commonly think of as ‘entrapment’.  That is to say, you can’t bust a person for committing a crime when the authorities told him it wasn’t a crime to do it!

Under established principles of estoppel and particularly in the context of the defense of estoppel by entrapment, defendants to a criminal action are protected and should not be prosecuted if they have reasonably relied on statements from the government indicating that their conduct is not unlawful. That principle should be applied to potential defendants as well, the plaintiffs in this action.  Such parties, courts have noted, are “person[s] sincerely desirous of obeying the law”. They “accepted the information as true and [were]…not on notice to make further inquiries.” U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).

The US Constitution figures prominently in the legal challenge as well.  The 9th Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”

The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.

The 14th Amendment says that all citizens have equal protection under the law.  The NORML attorneys argue that the federal government:

1. Actively provides cannabis for medical purposes to individuals through its own IND program.
2. Actively allows patients in Colorado to access medical cannabis through a state-licensing system that allows individuals to make profit from the sales of medical cannabis.
3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.

Thus, according to Kumin, Michael, and Silber, the government can’t be allowing Colorado medical marijuana commerce, engaging it its own IND program that mails 300 joints a month to four federal medical marijuana patients yet squelching all attempts to study medical value of marijuana, then have a rational basis for shutting down medical marijuana dispensaries in California.  Under the 14th Amendment, the feds can’t treat Californians differently than Coloradoans and differently than four US citizens who get legal federal medical marijuana.

Finally, while acknowledging that Raich v. Gonzales 545 US 1 (2005) set the precedent that the Constitution’s Interstate Commerce Clause does allow the feds to prosecute California’s medical marijuana, the NORML attorneys argue:

…it is still difficult to imagine that marijuana grown only in California, pursuant to California State law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.

We will keep you posted on all updates related to this groundbreaking lawsuit.  Archive of our interview with the lead attorneys in this case is available in our “Audio/Video” section on The NORML Network.

NORML Blog, Marijuana Law Reform

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Federal Government Announces Escalation Of Its War On Cannabis

DEAlogo Federal Government Announces Escalation Of Its War On Cannabis“This is not an idle threat. … What we’re trying to do is send a message as broadly as possible. … We are serious about enforcing federal law. … We are not just talking about it, but we are doing something about it. … Prosecuting marijuana cases is a higher priority now.”
–statements of the US Attorneys for the four federal districts in California

We’ve seen this coming for some time, but today the gloves officially came off. No more memos filled with false promises; no more phony pledges to respect states rights, no more giggles. Like a caged animal backed into a corner, the federal government is snarling and spitting back. It has no other way to defend its morally bankrupt policy except through a show of strength and intimidation.

California’s Top Federal Law Enforcement Officials Announce Enforcement Actions Against State’s Widespread and Illegal Marijuana Industry

via the US Department of Justice, Eastern District of California

SACRAMENTO, Calif.: October 7, 2011 – The four California-based United States Attorneys today announced coordinated enforcement actions targeting the illegal operations of the commercial marijuana industry in California.

The statewide enforcement effort is aimed at curtailing the large, for-profit marijuana industry that has developed since the passage of California’s Proposition 215 in 1996.

… While the four United States Attorneys have tailored enforcement actions to the specific problems in their own districts, the statewide enforcement efforts fall into three main categories:

· Civil forfeiture lawsuits against properties involved in drug trafficking activity, which includes, in some cases, marijuana sales in violation of local ordinances;

· Letters of warning to the owners and lienholders of properties where illegal marijuana sales are taking place; and

· Criminal cases targeting commercial marijuana activities, including arrests over the past two weeks in cases filed in federal courts in Los Angeles, San Diego, Sacramento and Fresno.

The enforcement actions being announced today are the result of the four United States Attorneys working with federal law enforcement partners and local officials across California to combat commercial marijuana activities that are having the most significant impacts in communities.

“The actions taken today in California by our U.S. Attorneys and their law enforcement partners are consistent with the Department’s commitment to enforcing existing federal laws, including the Controlled Substances Act (CSA), in all states,” said Deputy Attorney General James Cole.

… Laura E. Duffy, the United States Attorney for the Southern District of California, commented: “The California marijuana industry is not about providing medicine to the sick. It’s a pervasive for-profit industry that violates federal law. In addition to damaging our environment, this industry is creating significant negative consequences, in California and throughout the nation. As the number one marijuana producing state in the country, California is exporting not just marijuana but all the serious repercussions that come with it, including significant public safety issues and perhaps irreparable harm to our youth.”

Melinda Haag, the United States Attorney for the Northern District of California, said: “Marijuana stores operating in proximity to schools, parks, and other areas where children are present send the wrong message to those in our society who are the most impressionable. In addition, the huge profits generated by these stores, and the value of their inventory, present a danger that the stores will become a magnet for crime, which jeopardizes the safety of nearby children. Although our initial efforts in the Northern District focus on only certain marijuana stores, we will almost certainly be taking action against others. None are immune from action by the federal government.

Dozens of letters have been sent over the past few days to the owners and lienholders of properties where commercial marijuana stores and grows are located. In the Southern and Eastern Districts, the owners of buildings where marijuana stores operate have received letters warning that they risk losing their property and money derived from renting the space used for marijuana sales. In the Central District, … prosecutors have sent letters to property owners in selected cities where officials have requested federal assistance, and they plan to continue their enforcement actions in other cities as well. In the Northern District, owners and lienholders of marijuana stores operating near schools and other locations where children congregate have been warned that their operations are subject to enhanced penalties and that real property involved in the operations is subject to seizure and forfeiture to the United States.

… The statewide coordinated enforcement actions were announced this morning at a press conference in Sacramento.

It has been apparent for some time now that the Obama Administration is escalating its efforts to both crack down on existing above ground, medical cannabis operations in states like California, as well as to thwart the establishments of similar operations in additional states.

So why these stepped up efforts now? The answer ought to be self-evident. The intention of these and other recent, well-publicized threats by the Obama administration is to stifle the development of a viable legal cannabis distribution industry, even in states that have enacted legislation to allow for such an industry.

During today’s conference, all four US Attorneys affirmed that their intent is not to target individual, state-compliant medical cannabis consumers per se, but to emphasize that the Department of Justice is opposed to the regulated commerce of medical cannabis. That’s because once this industry has legitimized itself to the public and local lawmakers in California, Colorado, and elsewhere, then voters will become accustomed to safe, secure, well-run businesses that deliver consistent, reliable, tested cannabis products. They’ll appreciate the way well-regulated medical dispensaries revitalize sagging economies, provide jobs, and contribute taxes to budget-starved localities. They’ll realize all the years of scaremongering by the government about what would happen if marijuana were legal, even for sick people, was nothing but hysterical propaganda. And the voting public will eventually ask: ‘Why we don’t just legalize cannabis for everyone in a similarly responsible manner?’

And that is a question this administration has consistently indicated that the President is unable or unwilling to answer.

NORML Blog, Marijuana Law Reform

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The Federal Government ‘Ardently Supports’ Medical Marijuana Research?! Who Knew?

medical script The Federal Government ‘Ardently Supports’ Medical Marijuana Research?! Who Knew?Last month we shared with you a letter from Tennessee Congressman Steven Cohen — co-sponsor of HR 2306: The Ending Federal Marijuana Prohibition Act of 2011 — to Drug Czar Gil Kerlikowske, which called upon the Obama administration to support changing cannabis’ status as a schedule I prohibited drug and to respect the laws of states that have legalized it for its medical utility.

“We should not deny the thousands of Americans who rely on the benefits that marijuana provides,” Cohen wrote. “There is no evidence that marijuana has the same addictive qualities or damaging consequences as cocaine, heroin or methamphetamine and should not be treated as such.”

On Monday, October 3, Drug Czar Kerlikowske responded to Rep. Cohen. In his reply, summarized here, Kerlikowske alleged that the Congressman’s concerns regarding the federal scheduling of cannabis are unwarranted because, “We ardently support research into determining what components of the marijuana plant can be used as medicine.”

Kerlikowske added, “In fact, the federal government is the largest source of funding for research into the potential therapeutic benefits of marijuana, and every valid request for the use of marijuana for research has been approved by the Drug Enforcement Administration.”

Really? So how does the Drug Czar explain this headline — from Saturday’s edition of The Washington Post?

Marijuana study of traumatized veterans stuck in regulatory limbo

Getting pot on the street is easy. Just ask the 17 million Americans who smoked the federally illegal drug in 2010.

Obtaining weed from the government? That’s a lot harder.

In April, the Food and Drug Administration approved a first-of-its kind study to test whether marijuana can ease the nightmares, insomnia, anxiety and flashbacks common in combat veterans with post-traumatic stress disorder.

But now another branch of the federal government has stymied the study. The Health and Human Services Department is refusing to sell government-grown marijuana to the nonprofit group proposing the research, the Multidisciplinary Association for Psychedelic Studies.

That’s right, the Drug Czar is claiming that the federal government ‘ardently supports’ medical marijuana research just days after the US government formally denied a request for an FDA-approved clinical trial to assess cannabis’ therapeutic safety and efficacy.

Wait, it gets worse. The ugly truth is that the U.S. National Institute on Drug Abuse (NIDA), the agency that oversees 85 percent of the world’s research on controlled substances, is on record stating that its institutional policy is to reject any and all medical marijuana research. “As the National Institute on Drug Abuse, our focus is primarily on the negative consequences of marijuana use,” a NIDA spokesperson told The New York Times in 2010. “We generally do not fund research focused on the potential beneficial medical effects of marijuana.”

For once a government agency was telling the truth regarding cannabis. NIDA categorically does not support such research — despite the Obama administration in 2010 publicly issuing its “Scientific Integrity” memorandum stating, “Science and the scientific process must inform and guide decisions of my Administration.”

That is why an online search of ongoing FDA-approved clinical trials using the keyword “cannabinoids” yields only six studies (two of which have already been completed) worldwide involving subjects’ use of actual cannabis despite hundreds of favorable preclinical and observational studies clearly demonstrating its benefit.

Just how blatant is Kerlikowske’s latest lie? Consider this. According to the White House’s 2011 National Drug Control Strategy, released in July, only fourteen researchers in the United States are legally permitted to conduct research assessing the effect of inhaled cannabis in human subjects. That’s right, only fourteen! And even among this absurdly limited group of investigators, most are involved in research to assess the drug’s “abuse potential, physical/psychological effects, [and] adverse effects.” So says the White House.

Ardent support for medical marijuana research? Please Gil, don’t make us laugh.

NORML Blog, Marijuana Law Reform

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Medical Marijuana in Colorado, Will the Federal Government step in?

In 2002 medical Marijuana started to gain traction as a legitimate cure to many aliments.  Numerous studies started popping up showing that medical marijuana can be used as a treatment for things such as, sleep insomnia, depression, alcohol abuse, sickle-cell, and certain cancer types to name just a few.

In the mid 1990′s eight states residents voted to approve the use of Medical Marijuana.  These states included, Arizona, California, Colorado, Maine, Michigan, Nevada, Oregon, and Washington.  These states approved the use of Medical Marijuana despite federal regulations banning the use of Marijuana.  Since these states approved the use of Medical Marijuana 8 other states have followed.  In all 16 states have now approved the use of Medical Marijuana.

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7 States currently approve the use of dispensaries to distribute Marijuana to residents who have doctor approved Medical Marijuana.

These dispensaries initially started popping up in California and can now be found on almost every block of most cities in California.  In 2008 the New York Times reported 2,100 Marijuana dispensaries in California generated close to billion dollars and generated close to 0 million dollars in sales tax revenue.

Following the explosion of dispensaries in California, Colorado is now seeing the same growth of Marijuana dispensaries.  Colorado has initiated some regulation to help control the industry and required dispensaries owners to apply for a state permeate.  According to the state of Colorado there is currently over 800 state registered Medical Marijuana Dispensaries in Colorado.

With an ever increasing number of states approving the use of Medical Marijuana and dispensaries when will the federal government get involved and what sort of regulation will they impose on new and existing dispensaries?  The question of what government regulations will come to the medical marijuana industry and when is an ever growing question that will be answered sooner or later.

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