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Illinois’ New Marijuana Legislation: Notable Provisions and Important Considerations

By Sean D. Hurley

On June 25, 2019, Illinois Governor J.B. Pritzker signed into law HB 1438, otherwise known as the Cannabis Regulation and Tax Act (“the Act”), a bill legalizing the recreational use and purchase of marijuana in Illinois. Starting January 1, 2020, adults over the age of 21 will be able to legally purchase marijuana from licensed dispensaries throughout Illinois. With the passage of the Act, Illinois joins Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington as the 11th state to legalize recreational marijuana use.

The Act

Under the Act, adults over the age of 21 will be able to legally purchase marijuana. The amount of marijuana an adult will be allowed to possess will depend on whether the individual is an Illinois resident. Illinois residents will be allowed to legally possess 30 grams of cannabis flower, 5 grams of cannabis concentrate, and no more than 500 milligrams of THC contained in a cannabis-infused product. As for non-residents, they will be allowed to possess 15 grams of cannabis flower, 2.5 grams of cannabis, and no more than 250 milligrams of THC contained in a cannabis-infused product. These possession limits are to be considered cumulative.

To address concerns regarding the potential for an increase in impaired motorists as a result of this new law, a DUI Cannabis Task Force will be created to examine best practices in law enforcement with respect to motorists impaired by cannabis, including examining emerging technology in roadside testing. The Task Force is to present its report and recommendations to the Governor and the General Assembly by July 1, 2020.

In terms of advertising and protecting children from recreational marijuana, the Act places restrictions on how and where cannabis or cannabis-infused products may be advertised. Under the Act, no cannabis business establishment nor any other person or entity shall place or maintain, or cause to be placed or maintained, an advertisement of cannabis or a cannabis infused product in any form through any medium:

  • Within 1,000 feet of the perimeter of a school grounds, a playground, a recreation center or facility, a child-care center, a public park or public library, or a game arcade to which admission is not restricted to persons 21 years of age or older;
  • On or in a public transit vehicle or public transit shelter;
  • On or in a publicly owned or public operated property; or
  • That contains information that:
    • Is false or misleading;
    • Promotes excessive consumption;
    • Depicts a person under 21 years of age consuming cannabis;
    • Includes the image of a cannabis leaf; or
    • Includes any image designed or likely to appeal to minors, including cartoons, toys, animals, or children, or any other likeness to images, characters, or phrases that are popularly used to advertise to children, or any imitation of candy packaging or labeling, or that promotes the consumption of cannabis.

These restrictions do not apply to educational messages. The Act also places other limitations on how cannabis may be advertised, including prohibiting the provision of promotional materials or activities of a manner or type that would be appealing to children.

The State is poised to experience significant financial benefit in the coming years upon enactment of the Act. The Illinois Department of Revenue projects that the cannabis industry will generate $57 million in tax revenue and licensing fees for the State of Illinois in Fiscal Year 2020 and $140.5 million in Fiscal Year 2021. The Department of Revenue further projects that the cannabis industry could generate as much as $253.5 million in Fiscal Year 2022, $323.5 million in Fiscal Year 2023, and $375.5 million in Fiscal Year 2024. Twenty percent of the revenue generated by the sale of adult use cannabis will support efforts to address substance abuse and prevention and mental health.

Marijuana in the Workplace

Even though recreational marijuana use has been legalized under Illinois law, marijuana remains illegal under federal law and employers still have the right to maintain a substance-free work environment. The Drug Free Workplace Act (41 U.S.C. Sec. 81) requires employers that contract with the federal government to enforce a zero-tolerance policy regarding the use of illegal drugs in the workplace. Because federal contractors are subject to federal law pursuant to the terms of their contracts, and because marijuana is an illegal drug under federal law, no state law, including Illinois’ new marijuana law, may require a federal contractor to accommodate marijuana use in the workplace.

And even employers that do not contract with the federal government are not prohibited from adopting reasonable zero tolerance or drug free workplace policies. The Act does not prohibit policies regarding drug testing or the use of drugs, including marijuana, in the workplace or when an employee is on call, as long as the policy is applied in a nondiscriminatory manner. The Act does not require an employer to permit or accommodate marijuana use while on the job or to permit intoxication at work. Furthermore, nothing in the Act prevents an employer from disciplining or terminating an employee for violating the employer’s employment policies, including the employer’s drug policy.

However, employers must remember that under Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS 1301/1), an employer may not penalize a valid medical marijuana card holder solely because he or she is in the Medical Cannabis Pilot Program registry. Prior to legalizing recreational marijuana use, Illinois enacted the Compassionate Use of Medical Cannabis Pilot Program Act, which became effective on January 1, 2014. Illinois’ new marijuana legislation does not alter the Medical Cannabis Pilot Program. Under the new Act, registered patients in Illinois’ Medical Cannabis Pilot Program may possess in excess of 30 grams of cannabis, if it is grown and secured in their residence under certain conditions. Moreover, cultivators and dispensaries will be required to reserve sufficient supply to accommodate medical marijuana users. In order to purchase medical marijuana pursuant to that program, users must be registered with the Illinois Department of Public Health and receive a registry identification card. The Compassionate Use of Medical Cannabis Pilot Program Act lists 40 chronic conditions and diseases that can qualify a user for the registry.

Should you have any questions regarding these issues, or require assistance drafting a drugs and alcohol policy, please contact Colette Kopon at [email protected] or 312-506-4459, Sean D. Hurley at [email protected] or 312-506-4455, or Daniel W. Myerson at [email protected] or 312-506-4469.