How Pilots, Charter Companies, and Airlines are Responding to the Legalization of Marijuana

March 2018

Can Legalized Marijuana Take Flight? 

On March 20, 2018, two-thirds of the voters in Cook County, Illinois approved an advisory question to legalize recreational marijuana use in the state. It wasn’t binding and it did not cover the rest of the state, but Chicago overwhelmingly voted for the measure. And Chicago is not alone. Today, twenty-eight states and the District of Columbia have legalized medical marijuana plant use. In addition, six states and the District of Columbia have legalized recreational use of marijuana.

But not everyone is “on board.” The Trump administration announced its position on January 4 of this year in a press release that made their position very clear:

In the Controlled Substances Act, Congress has generally prohibited the cultivation, distribution, and possession of marijuana. 21 U.S.C. 801 et seq. It has established significant penalties for these crimes. 21 U.S.C. 841 et seq. These activities also may serve as the basis for the prosecution of other crimes, such as those prohibited by the money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act.

Which (speaking of “on board”) leaves a quandary for those who use and operate aircraft. Can an aircraft passenger bring legalized marijuana along on a trip, say between two states that have approved legalization? How do pilots, charter companies, and airlines deal with the issue?

The answer is fairly clear. All public airports, airspace, and aircraft are governed by federal law and subject to federal law enforcement. Therefore, a passenger may never legally fly on an aircraft with marijuana or products containing marijuana. This is true even if you have a medical marijuana identification card and even if you are flying between two locations in the same state that legalizes the use. By entering the airport, you are entering a federal jurisdiction and from a federal perspective, there is no exception.

The Transportation Security Administration (TSA), as a federal agency, is required to abide by federal laws. Their public stance on legalized marijuana is less aggressive than that of the Department of Justice, but their guidelines are still quite clear:

Possession of marijuana and cannabis-infused products…is illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana and cannabis-infused products. TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs, but in the event a substance that appears to be marijuana or a cannabis-infused product is observed during security screening, TSA will refer the matter to a law enforcement officer.

TSA’s K9 units are sniffing for bombs, not marijuana. And if the TSA refers a matter to local law enforcement where it is legal for the individual to possess marijuana under state law, there may not be a penalty for possession. There is a growing online culture that encourages passengers to take advantage of this, to take a risk and pack marijuana in their checked or carry-on baggage in anticipation that TSA will allow small amounts of marijuana. But the fact is, legal marijuana is still illegal contraband under federal law and the story may be very different if the referral goes to the Drug Enforcement Administration (DEA). Possession of marijuana is punishable under federal law by up to one year in jail and a minimum fine of $1,000 for a first conviction and sentences and penalties increase for subsequent offenses.

In any case, there have been an increasing number of passengers willing to take those risks in their airline travel, with a view that the chances of being caught, and the penalties, are low.  And if that view is prevalent with respect to airlines, there is also a perception that the risks are even lower on charter aircraft and privately owned and operated aircraft.  (For instance, see “Jet-iquette: How to Hotbox a Private Plane“). But if the risks and penalties are low for passengers, the same cannot be said for the operators of those flights. Charter operators and professional pilots have their own rules and their own penalties.

Federal Aviation Regulations have always provided penalties for crew operating under the influence of drugs (including cannabis) and alcohol. But they also require pilots and operators to police passenger conduct in flight:

§91.17 Alcohol or drugs.

(b) Except in an emergency, no pilot of a civil aircraft may allow a person who appears to be intoxicated or who demonstrates by manner or physical indications that the individual is under the influence of drugs (except a medical patient under proper care) to be carried in that aircraft.

§91.19 Carriage of narcotic drugs, marijuana, and depressant or stimulant drugs or substances.

(a) Except as provided in paragraph (b) of this section, no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marijuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.

(b) Paragraph (a) of this section 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.

And the penalties are stiff:

(b) Committing an act prohibited by §91.17(a) or §91.19(a) of this chapter is grounds for:

(1) Denial of an application for a certificate, rating, or authorization issued under this part for a period of up to 1 year after the date of that act; or

(2) Suspension or revocation of any certificate, rating, or authorization issued under this part.

The lesson for operators and pilots is clear: if you know your passengers are bringing a controlled substance on board, stop them. You risk your license and your livelihood if you do not. This is, of course, easier to say in concept than in practice. Pilots with insistent passengers might also be risking their livelihood and employment by telling the boss or customer “no.”

But the lesson for their passengers should be equally clear: if you want to take the risk yourself, that’s your call. But show some compassion for your employees and contractors and try not to involve your pilots in your decision.

For now, there is a definite mismatch between state and federal law on legalized marijuana. It’s hard to tell if that situation may resolve itself over the next decade, but it might. If it does, then possession will no longer be an issue. But certain things, namely passenger conduct and an operator’s obligation to provide a safe flight, will not and should not change. And in that respect, there will always be some regulation of controlled substances in aviation.

If you have any questions about the above article, feel free to contact Kevin Johnson (kevin.johnson@fmjlaw.com), James Gladen (james.gladen@fmjlaw.com), or Heather Halverson (heather.halverson@fmjlaw.com). If you would like additional information on our Transportation & Logistics group – view the practice group page here