With ongoing tensions between U.S. state and federal marijuana laws, U.S. marijuana investments present significant legal and logistical challenges. This is especially true for investors with ties to federally regulated businesses. While some investors have accepted the risks of U.S. marijuana, others are waiting for major federal reforms. But what if there was a way to invest in marijuana without the looming threat of federal enforcement?
International marijuana operators might offer just that opportunity. Marijuana remains a Schedule I controlled substance within the U.S. (See Thoughts on the Terrible Pageant of Marijuana Rescheduling) Even if marijuana is moved into Schedule III, it will still be illegal to buy and sell interstate without a DEA license, and state markets won’t fundamentally change. This opens the door for investment and operational partnerships in legal marijuana markets abroad — without many of the risks associated with U.S. marijuana operators.
Some U.S. Code provisions relevant to investing in international marijuana markets
21 USC § 841(a)
Makes it illegal to manufacture, distribute, or possess with intent to distribute a controlled substance within the U.S.
21 USC § 959
Extends the reach of the Controlled Substances Act (CSA), criminalizing the intent to import a Schedule I substance into the U.S. This explicit reference to unlawful importation shows that Congress anticipated extraterritorial application of the CSA for certain sections (e.g. § 959) and not others (e.g. § 841(a)).
18 USC § 1956
Criminalizes monetary transactions involving proceeds from “specified unlawful activity”, including violations of the CSA. Unless a foreign investment or operational partnership resulted in the import of marijuana into the U.S., it would not rise to the level of a “specified unlawful activity.”
21 USC §§ 846; 18 USC 371; & 18 USC 2
Both conspiracy and aiding and abetting confer extraterritorial jurisdiction to the same extent as the underlying offense. Therefore, unless the foreign investment resulted in marijuana being imported into the U.S., such investment would not trigger these violations.
Key judicial interpretations on investing in international marijuana markets
The CSA does not speak specifically to foreign investment into an operation that would otherwise be illegal in the U.S. As such, we must look to judicial precedent.
The Supreme Court has emphasized that unless Congress speaks to the extraterritorial application of a law, then it does not generally apply to foreign activities. The relevant issue here centers on whether the foreign activity is intended to, or could reasonably be expected to, result in a violation on U.S. soil. For example, investing in a foreign operator that intends to illegally export marijuana into the U.S., would trigger a CSA violation. However, investing in a foreign operator that intends only to manufacture and sell marijuana outside of the U.S., would not trigger a CSA violation (ensuring robust SOPs and internal oversight policies is also critical).
The leading case on this topic is United States v. LopezVanegas, which relied on Supreme Court precedent on extraterritorial application of U.S. law. The Eleventh Circuit held that where “the object of the conspiracy was to possess controlled substances outside the United States with the intent to distribute outside the United States” the CSA does not apply to those foreign activities. The Court noted that it did not matter whether the alleged conspirators planned some of the operations from within the U.S. The key to a CSA violation centered around whether the conspirators intended to possess or distribute a controlled substance inside the U.S.
Courts in the First Circuit, Fifth Circuit, D.C. Circuit, and the Eastern and Northern District (States v. Daniels, 2010 WL 2557506 (N.D. Cal. June 21, 2010)) have either cited Lopez-Vanegas or reached similar conclusions in cases with both similar and differing circumstances.
What does this mean for international marijuana investment?
These judicial interpretations show that investing in or providing operational support to legal foreign marijuana operators does not pose a risk of violating U.S. law— provided that the investment does not involve importing marijuana into the U.S. While some U.S. banks may remain cautious, these concerns can often be alleviated with a well-supported legal memorandum or opinion.
If you or your team are interested in exploring opportunities to support legal marijuana operations abroad (e.g. Canada, Germany, Thailand, Colombia, Portugal, etc.), please reach out for a free consultation.
