Can I Bring My Marijuana On A Plane?
Free Book Preview Cannabis Capital
With marijuana legalization happening in new regions across the country, people may assume they can travel with cannabis when they fly. However, because marijuana remains illegal under federal law, traveling with it on a plane, even from one legal state to another, is a crime.
In Illinois, where adult-use weed sales just became legal in January 2020, officials have placed “cannabis amnesty” boxes at both Midway and O’Hare airports to give passengers a chance to dump their weed, no questions asked (or arrests made). Similar amnesty boxes have been used in Aspen, Colorado, and Las Vegas. They fill up.
That’s indicative of how much public officials think this could become a problem. DePaul University transportation professor Joseph Schwieterman told the Daily Herald in Chicago: “There is a misconception that if you can buy the stuff legally -- you can take it wherever you go. That will create some unpleasant surprises, particularly at our airports."
The potential unpleasant surprises include arrest.
Travelers need to know the risks. It could come down to a situation where officers are involved. For some people, cannabis demand is worth the gamble.
Jeffrey D. Welsh, cannabis attorney, and partner at Vicente Sederberg, explains: "Cannabis is still listed as a Schedule 1 drug under the Controlled Substances Act. TSA's primary job is to detect potential threats to aviation and its passengers (terrorism), so I would say they are not highly concerned about a little cannabis for personal use. That's the job of local law enforcement and federal drug agents."
The Transportation Security Administration (TSA) does not, under its official policy, look for marijuana. But it did clarify in 2019 that if they find cannabis, they can make the choice to call in local law enforcement. At that point, you are at the mercy of local laws. How local police approach cases involving small amounts of marijuana possession vary state-to-state.
In some cases, states have decriminalized marijuana possession and the most you will face is a fine. In other states, cannabis remains illegal and comes with a more severe fine and even arrest. At the very least, there’s an unfortunate chance you will miss your flight.
It’s a case-by-case situation, much like when people transport cannabis from a legal state to an illegal one, an issue that is arising on state borders such as those between Ohio and Michigan, Indiana and Illinois, and Idaho and Oregon.
"It would be a violation of Federal law via the Interstate Commerce Clause," says Welsh. "The reason crossing state lines with cannabis is a violation of federal law even if that cannabis law legally purchased in the originating state, is that under Article 1 of the U.S. Constitution, the Interstate Commerce Clause is regulated by the federal government. So - it is illegal to move cannabis across any state lines without violating federal law. Federal law always trumps state law."
That’s not stopping people. In Los Angeles, arrests at the airport for cannabis possession have soared 166 percent since adult-use legalization in 2018. This includes both those with small amounts for personal use and those with pounds of weed in their bags, according to the Los Angeles Times.
Others have been arrested as they arrive in other states, such as the Texas man arrested in Austin for flying with five pounds of marijuana from California.
What are the TSA rules around taking marijuana on planes?
Federal law bans people from taking marijuana on flights, even if you are flying from one legal state to another. And even if you are flying within a legal state, you still must go through a TSA checkpoint, which is controlled under federal law. That means technically you are committing a crime and the TSA can call in local authorities, although that apparently is a rare occurrence in such cases.
CBD products, which contain little THC, are only legal if that level is less than the federal limit of 0.3%.
On its website, the TSA states that “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.”
The TSA goes on: “But if any illegal substance is discovered during security screening, TSA will refer the matter to a law enforcement officer.” The statement concludes: “The final decision rests with the TSA officer on whether an item is allowed through the checkpoint.”
"Typically, airports are owned by the city, but the federal authorities, TSA and the FAA, are authorized to operate airports," says Welsh. "If, during a screening process at an airport, a TSA officer discovers an item that may violate federal law, the matter is referred to local law enforcement. Which, in a state that has legalized cannabis for recreational use, likely means you're simply going to have to throw your cannabis away, unless you are attempting to get through security with an excessive amount of cannabis that is clearly meant to be sold at your destination."
For the cautious among us, that’s enough to leave marijuana at home. If you are thinking, “I like my odds," just know that technically, you are breaking the law.