Travelers navigating through airports in states where marijuana has been legalized are picking up mixed messages, thanks to a hodgepodge of conflicting federal and state laws and enforcement policies that differ from airport to airport.
“Are we cool? We like to think we’re cool,” said the TSA in a recent Instagram post. “We want you to have a pleasant experience at the airport and arrive safely at your destination. But getting caught while trying to fly with marijuana or cannabis-infused products can really harsh your mellow.”
“Let us be blunt,” the caption continues. “TSA officers DO NOT search for marijuana or other illegal drugs. Our screening procedures are focused on security and detecting potential threats. But in the event a substance appears to be marijuana or a cannabis-infused product, we’re required by federal law to notify law enforcement. This includes items that are used for medicinal purposes.”
“There are all kinds of mixed messages being sent, but that’s because we have mixed messages in the legal system,” says David Bannard, an attorney with Kaplan Kirsch & Rockwell LLP in Boston, who consults with airports on marijuana and other regulatory issues. “We’ve got such a conflict right now between states that have legalized marijuana for either recreational or medicinal use and the federal requirements that continue to make it a Schedule I controlled substance.” Since the passage of the Controlled Substances Act in 1970, marijuana has been classified in the same group as heroin, LSD and ecstasy.
But times — and attitudes — are changing. National support for legalizing marijuana at the federal level reached a record 66 percent in a Gallup survey from October 2018, even hitting majority level among traditionally conservative segments such as older Americans over age 55 (59%) and Republicans (53%).
Currently, the U.S. map of legalized marijuana looks like a patchwork quilt, with recreational cannabis legal in 10 states and D.C., and medicinal marijuana legal in 33 states. Fourteen states have decriminalized marijuana.
Still, Uncle Sam remains clear-eyed. “It’s pretty simple from the TSA perspective. Under federal law, marijuana is still illegal,” says Jenny Burke, a TSA spokesperson. “We’re just reminding travelers to always be prepared for what to expect so that they are not caught unprepared or unaware of what would be allowed to pass through at a checkpoint.”
It would be even simpler if the TSA enforced the law. Instead, the agency kicks the can over to local police. What happens next depends on the airport and the amount of cannabis in question.
Flying out of Vegas? While it is legal to possess up to an ounce of marijuana in the state of Nevada, a superseding local ordinance deems it illegal at McCarran International Airport. “It clears up any of that gray area or indecision,” says airport spokesperson Christine Crews.
But there’s still plenty of gray area for local law enforcement. If the TSA finds marijuana, officers with the Las Vegas Metropolitan Police Department have the discretion to allow the passenger to surrender the cannabis or issue a misdemeanor fine and take possession of the substance. “Now that’s assuming it is within the misdemeanor amount,” says Crews. “If it’s over one ounce, that’s a felony, and that’s true even off airport property.”
“With that said, Las Vegas is a leisure market and a destination market,” says Crews. “We understand that people come here to have a good time, so our law enforcement and our community as a whole value that. Our law enforcement officers really treat each situation with a lot of discretion.”
For travelers who may inadvertently bring cannabis to the airport, McCarran provides 10 “amnesty boxes” where travelers can dispose of their product without fear of retribution. There are two additional boxes at the airport’s rental car center.
The rules at LAX are even more, well, lax. According to a statement by Los Angeles International Airport, local law enforcement will not arrest passengers who possess up to 28.5 grams of marijuana and 8 grams of concentrated marijuana for personal consumption, the legal limit in California.
Seattle-Tacoma Airport also allows adult passengers to carry marijuana in amounts at or under the state’s legal limit. And per the Portland International Airport (PDX) website, passengers flying within the state of Oregon can bring a legal amount of recreational marijuana past the security checkpoints.
Meanwhile, the situation at Boston’s Logan Airport is a bit hazier. Possession of up to an ounce of cannabis is legal in Massachusetts, but “Logan has decided to basically not take a position on the matter,” says Bannard. “There are no amnesty boxes and there’s no prohibition. I think they’re really hoping that Congress will pass a law so that they, frankly, don’t have to deal with it.”
To resolve this tangled mess, a change in law at the federal level is required, Bannard says. The STATES Act, introduced by Sen. Elizabeth Warren (D-MA) and Sen. Cory Gardner (R-CO), is currently pending in Congress and would leave marijuana enforcement to the states.
“It’s a pain in the neck for a whole bunch of reasons to have state and federal law not agreeing,” says Jonathan Caulkins, professor of operations research and public policy at Carnegie Mellon University and author of Marijuana Legalization: What Everyone Needs to Know.
Caulkins takes a decidedly “just say no” view of traveling with pot. “Every single thing having anything to do with cannabis is 100 percent illegal in every square inch of the country because it’s against federal law,” he says. “The federal government chooses not to enforce that law in various situations – but, really, none of it is legal.”
