While many U.S. states have issued guidance to address the COVID-19 pandemic, Dr. Anthony Fauci, the nation’s top infectious disease expert, told CNN last week that the governors who have not issued statewide stay-at-home orders “really should” take action to slow the spread of the virus.
President Donald Trump, on the other hand, has largely advocated for each state to take its own approach, but Fauci’s message could indicate the inevitability of a federal stay-at-home order as the public health crisis evolves.
Should federal guidance come into play, what would this mean for cannabis businesses operating in a federally illegal industry?
First and foremost is the question of whether the federal government can legally issue a stay-at-home order in the first place.
“I think there’s still a question [of] if the federal government has the authority to issue a shutdown order,” Karen O’Keefe, director of state policies for The Marijuana Policy Project (MPP) and the MPP Foundation, tells Cannabis Business Times. “I saw that there are some general classifications of what constitutes an essential service and what does not for the federal government, and at least one state that was relying on that used those definitions to include medical cannabis as something that could stay open because pharmaceutical and medical facilities can stay open. … Certainly, my hope and expectation would be … a general mandate to keep open businesses that provide medications, and then that would include medical cannabis.”
If the federal government is indeed authorized to issue stay-at-home guidance, the consensus among industry stakeholders seems to be that any federal order should leave flexibility for states to continue deeming certain businesses essential, as they see fit. This would mean that the cannabis industry should be safe in jurisdictions that already carved out exceptions for their cannabis businesses in