No Conflict Preemption of New Jersey’s Compassionate Use Medical Marijuana Act by the Federal Controlled Substances Act

Hager v. M&K Construction, ___ N.J. Super. ___ (App. Div. 2020). Issues relating to medical marijuana have been very contentious. Among other things, the fact that the federal government has continued to treat marijuana as a Schedule I controlled dangerous substance, whose production or distribution is a federal felony, even as states have begun to legalize marijuana, has created complications. Even possession of marijuana can be a federal crime, as Judge Currier noted in her opinion for the Appellate Division in this matter.

This case exemplified some of the difficulties that arise out of the unique status of marijuana at the moment. Judge Currier well summarized the issues in the first two paragraphs of her opinion:

“In this case of first impression, we consider whether a workers’ compensation judge can order an employer to reimburse its employee for the employee’s use of medical marijuana prescribed for chronic pain following a work-related accident. Respondent M&K Construction argues that the federal Controlled Substances Act (CSA), 21 U.S.C. § 841, which makes it a crime to manufacture, possess or distribute marijuana, preempts the New Jersey Compassionate Use Medical Marijuana Act (MMA) because it is impossible to comply with both statutes.

“M&K further contends the order violates the CSA because it requires the employer to aid and abet petitioner’s possession of an illegal substance. M&K also asserts it should be treated similarly to a private health insurer, which is not required under the MMA to cover the costs of medical marijuana. Lastly, M&K contends the judge erred in failing to consider whether medical marijuana is a reasonable and necessary form of treatment under the Workers’ Compensation Act (WCA), N.J.S.A. 34:15-1 to -146.”

The Appellate Division affords significant deference to the fact findings of a Workers Compensation Judge, as Judge Currier observed. But the panel reviewed the legal issues de novo.

The bulk of the Appellate Division’s opinion addressed M&K’s claim that the federal CSA preempted the state MMA because, as M&K put it, “”it is impossible to simultaneously comply with both statutes.” In an exhaustive and careful discussion, Judge Currier did not agree.

Judge Currier observed that “[a]s stated, Congress has expressed its intent in the plain language of the CSA that it only preempts a state law that requires the performance of an action specifically forbidden by the federal statute. 21 U.S.C. § 903…. .Under the CSA, the possession, manufacture, and distribution of marijuana is a criminal and punishable offense. But an employer’s reimbursement of a registered MMA patient’s use of medical marijuana does not require the employer to commit those offenses.” Because that was so, the statutes did not conflict, and it was not impossible for M&K to comply with both of them.

Judge Currier also did not accept M&K’s argument that “the CSA preempts the MMA because it would be aiding and abetting petitioner in the commission of a crime, the possession of marijuana, if it reimbursed him for medical marijuana as ordered by the compensation judge.” But M&K was “not an active participant in the commission of a crime,” as required for aiding and abetting liability. Rather, it was required only to reimburse its employee for “the legal use of medical marijuana under this state’s law.” And, in any event, if the employee did commit a crime, it was already complete when M&K was directed to reimburse him. Judge Currier noted that “one cannot aid and abet a completed crime.”

M&K’s other arguments were easily disposed of. M&K’s contention that it should be treated like a private health insurer, whom the MMA cannot require to reimburse for the use of marijuana, failed. N.J.S.A. 24:6I-14 “designated two categories of entities that may not be required to reimburse the costs of medical marijuana: government medical assistance programs or private health insurers.” Workers compensation insurers were not included among those categories. “If the Legislature wished to relieve workers’ compensation insurers from any obligation to pay the costs of medical marijuana, it would have done so.”

Finally, Judge Currier rebuffed M&K’s claim that the Workers Compensation Judge had failed to consider other treatment modalities that did not involve marijuana, especially since marijuana is illegal under the CSA. Opioids were one such alternative. But there was competent medical testimony that opiods “carried a risk of death” and were “significantly more addictive than marijuana.” The evidence as a whole supported the judge’s decision in favor of marijuana, whose use allowed petitioner to cease his use of opioids. Judge Currier emphatically stated that “[t]hat achievement, by itself, in light of the opioid crisis in existence today, should suffice as a rationale for the reimbursement of medical marijuana.”

All was not success for the petitioner, however. He had cross-appealed the Workers Compensation Judge’s finding that he had only a 65% permanent partial total disability, arguing that a 100% finding should have been made. The panel deferred to the judge’s decision, which was based on sufficient credible evidence.