Army Mellows on its “Dear John” Letters to I-502 Businesses

Cannabis
is a federally illegal controlled substance. So it should come as no surprise
that the Armed Forces prohibit their active-duty members from engaging in
certain acts pursuant to the Uniform Code of Military Justice (UCMJ), including
using controlled substances like cannabis. What you may not know is that the
Armed Forces frequently put their members and even outside businesses on notice
of such prohibitions via letters.

The
Army recently sent warning letters out to state-licensed, recreational cannabis
stores in Washington State. To date, 86 letters have been sent to recreational cannabis
businesses, including to a large number of our retail cannabis clients. A few
weeks ago, several of our retail clients informed us of having received cease
and desist letters from the Department of the Army. These letters notified cannabis
retailers that their products and services are not to be sold to active-duty
military members:

“This
letter is to inform you that your establishment has been declared
“Off-Limits” to members of the Armed Forces . . . Members of the
Armed Forces are prohibited from entering your establishment as long as this
order is in effect. This action is being taken because of the prohibited sales
of substances similar to cannabis to Service Members.

This
restriction will remain in effect indefinitely in accordance with established
Armed Forces policy unless you agree to stop selling substances similar to cannabis
to military personnel. You have 30 days to present evidence to the [Armed
Forces Disciplinary Control Board] that you agree to stop selling these
substances to military personnel.”

The
letters summarily conclude by stating that removal from the
“off-limits” list will be considered if the retailers can show that
they’ve stopped selling cannabis to service members and that
“correspondence appealing this action” can be submitted to the Army
if the designated retailer so desires.

Our
clients were not happy about receiving these letters; no business wants to be
put on an “off-limits-or-else” list by any federal department.
However, the bigger question was whether our clients actually needed to take
any action here and whether the Army has any ability or authority to do
anything to a state-licensed I-502 cannabis business.

The
short answer to all of the foregoing is no.

There
is nothing in either RCW 69.50 or WAC 314-55 obligating cannabis retailers to
ID patrons to determine whether they are in the military. Washington state law
also nowhere prohibits retailers from selling cannabis to active-duty service
members. And even if a retailer opts to sell to someone in the Army, (or the
Air Force, Coast Guard, Navy or Marines) the Army has no jurisdiction to
prosecute that retailer.

So
why would the Army send these toothless letters at all?

Despite
the curt tone of the letters, Joe Kubistek, a spokesman for Joint Base
Lewis-McChord, stressed that these letters are a courtesy notification to the
businesses and not a demand of any sort. Kubistek instead said that “the
Armed Forces Disciplinary Control Board recognizes these businesses were
established for the purpose of selling and distributing cannabis, within state
guidelines, and had no intention of interfering with their business
operations.” According to Kubistek, it is a standard practice of the
military to put service members on notice of what they can and cannot do and
that it’s on the service member to act accordingly (not the “off-limits”
business). Consequently, retail cannabis shops have now joined the ranks of
payday lending offices and certain nightclubs and strip clubs on the no-go list
for military members.

This
likely will not be the last time the military tries to stem the cannabis
legalization tide in an effort to temper its impact on its service men and
women. And though it may be disconcerting to receive one of these letters, just
know that it’s military business as usual.