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Like the alcohol industry was during Prohibition, the marijuana industry is a profitable one. And, as bootlegging was then, selling marijuana in the United States is currently illegal. Despite the number of states that have legalized or decriminalized the sale of marijuana for medical or recreational use under state law, marijuana sales remain illegal as a matter of federal law under the federal Controlled Substances Act of 1970 (“CSA”). Individuals and entities that violate the CSA face substantial criminal and civil liability, including prison time and fines, alongside a host of additional negative consequences arising from business, tax, bankruptcy, and banking law, as well as other sources. The negative consequences that marijuana businesses face have been discussed in detail elsewhere. This Essay asks a different question: not what are the negative consequences, but rather, when do those negative consequences attach? In other words, when does a company become a “Marijuana Business”?

For purposes of this discussion, a Marijuana Business is an entity that participates, contributes, or assists, directly or indirectly, in the retail and/or medical marijuana industry to an extent that exposes it, its owners, and its agents to potential criminal and civil liability and other negative business consequences. In short, these are the companies that should be worried about the fact that they are engaging in an industry that is illegal under federal law. To identify the circumstances that result in a company’s being a Marijuana Business, this Essay analyzes seven hypothetical companies that directly participate in the marijuana industry or support others that do. For each, the Essay asks whether the facts are sufficient to establish criminal liability either directly under the CSA or indirectly under criminal conspiracy or aiding and abetting liability theories.

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