Mrs. Fisher, a seventy-year-old snowbird, who travels from New York to Florida for the winter months, recently asked me what she should do about traveling with medical marijuana. I told her it’s illegal to travel with on an airplane but she is more likely to get struck by lightning than get into trouble for it.
Just a few months before, she was suffering from chronic pain. Her right hand would regularly spasm and prevent her from doing the things she loved, like knitting, writing and even using her computer. With almost complete relief of these spasms, she could finally get back to doing them.
Medical marijuana helps millions of patients with chronic illness. Like Mrs. Fisher, other individuals with serious illnesses, including conditions like cancer, chronic pain, ALS, multiple sclerosis or Parkinson’s disease have at last found something that works to relieve their pain, increase their mobility and improve their quality of life. For many of these patients, it is the first time in years they may be able or willing to go away on vacation. The new treatment helps them to endure sitting for a prolonged time on a plane and walk down the boardwalk or improves their mood enough to make them want to get away. Sadly, there is one thing getting in their way–the law.
Medical Marijuana is Legal According to States But Illegal According to the Federal Government
While more and more states are recognizing the wealth of medical evidence that demonstrates medical marijuana’s benefits and have legalized its use, the federal government still considers it to be illegal. They still classify marijuana as a Schedule I substance, considered to have no medical benefit, like heroin, MDMA, and LSD. That means if you have a medical marijuana card, as in New York State, it is legal to possess and travel with it within that state, but a red line exists beyond.
Traveling with Medical Marijuana is Illegal
Once you cross into an airport’s secure area, past the TSA checkpoint, you are now in a federally, not state, controlled area. This makes carrying marijuana past security illegal–even if it has been prescribed to treat a medical condition and the airport is in a state like New York, where it is legal to possess and consume medical marijuana. This applies not only to carry-on luggage, but also to your checked luggage.
It’s illegal to transport marijuana across state lines, no matter what form of transportation you are using, whether you are in a plane, train, bus, car, bicycle, or even on foot. Just walking from state to state with it is illegal, even if possession of medical marijuana is legal in both states. For example, say you walked with medical marijuana across the George Washington Bridge from New York into New Jersey, two states where medical marijuana is legal, you would have just violated federal laws which govern interstate travel.
Why TSA Won’t Enforce the Laws Against Traveling with Medical Marijuana
There are a few reasons why TSA (Transportation Security Administration) doesn’t enforce Medical marijuana laws.
1. TSA agents are specifically looking for threats, not marijuana carried by patients seeking pain relief from the medication. The TSA states that they “don’t have the authority” to arrest or charge someone for attempting to carry marijuana through security or onto the plane. They aren’t specifically looking for marijuana when they screen carry-on bags, but if they do find it, they may report it to local authorities.
2. TSA agents aren’t likely to detect marijuana, even if they search a carry-on bag, unless there is a sniffer dog present. Even then these dogs are usually trained to sniff for bombs and not drugs.
3. TSA doesn’t have the manpower to enforce this law. While we don’t know how many people actually travel with medical marijuana, a recent survey of over 5,000 travelers revealed that 52% of them had taken it with them on domestic flights.
4. The TSA appears to have taken a liberal public stance on the matter. On Twitter for example, they stated they had “no regulations on transporting marijuana” in March 2017.
While we have no regulations on transporting marijuana, possession is a crime under Federal law. 1/2
— AskTSA (@AskTSA) March 29, 2017
Our officers aren’t looking for illegal narcotics, but they have to report them to law enforcement when discovered. 2/2
— AskTSA (@AskTSA) March 29, 2017
On April 5th 2017, the TSA even temporarily posted on their website that passengers were allowed to travel with medical marijuana in checked and carry-on baggage.
Shortly after this was reported though, TSA issued an apology on twitter and updated their website.
We’re sorry for any confusion. A mistake was made in the database of our new “What can I bring?” tool.
— AskTSA (@AskTSA) April 5, 2017
The TSA website currently states that “Possession of marijuana is illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana. TSA’s 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, but in the event a substance that appears to be marijuana is observed during security screening, TSA will refer the matter to a law enforcement officer.
5. The optics wouldn’t be good for TSA if they arrested medical patients.
Just imagine how it would look on the evening news if Grandma was being carried out of the airport in handcuffs for trying to take her Parkinson’s medication with her on the plane.
Just because someone can legally enforce something, it doesn’t mean the public will perceive it positively. Remember when United Airlines dragged a patient off an overbooked flight in 2017? They may have been within their rights but it backfired for them horribly and ended up costing them in terms of their reputation and bottom line.
What actually happens if TSA finds Medical Marijuana?
If a TSA agent does find medical marijuana in your carry-on, a number of things may happen. They may well choose to ignore it. They could ask you to throw it away or they could call in local law enforcement. This will vary on a case-by-case and state-by-state basis. The procedures may be different in say Washington, where marijuana is legalized for both medical and recreational use, to those in New York, where it is only legalized for medical use in specific circumstances.
The Chances of Getting into Trouble for Traveling with Marijuana are Extremely Low
It turns out your chances of getting stopped at an airport for carrying medical marijuana are low—really low. In fact, you are much more likely to be struck by lightning. For example, only 29 out a total 54 million passengers passing through Colorado’s Denver International Airport were stopped for possession of marijuana. Since marijuana is legal in Colorado for both medicinal and recreational purposes, as long as the traveler was carrying an amount legal in that state, the police simply asked the traveler to dispose of it and took no punitive action. The odds work out to be 1 in 1,800,000, roughly the same odds of you becoming a movie star. In Florida, where only medical marijuana is legal, the number of people detained was slightly higher but still very low. Eleven of nearly 2.8 million passengers were detained in 2016 and were either arrested or given a summons. The odds here being 1 in 250,000, which exceeds the risk of being hit and killed by an asteroid strike. In both cases, the chances of ever being struck by lightning are much higher–around 1 in 12,000.
How to Travel with Medical Marijuana
If you have decided that you are going to travel with medical marijuana, you won’t be alone. You will probably be in the company of almost a quarter million daily passengers who have chosen to risk flying with medical marijuana within the United States, especially between states that have legalized it for medical purposes. There are a few things you can do to minimize the risk of getting into any trouble.
Bring Your Certification and Medical Marijuana Card
Firstly, take a copy of your doctor’s recommendation showing that the marijuana was recommended for treating an approved medical condition, along your medical card, which will prove that you are allowed to carry it. Always fully cooperate with TSA agents if they search your bag. If there is a query about your medicinal contraband, you may explain that it is “my medicine” or whatever you are comfortable telling them. You are not obliged to identify the substance because your Fifth Amendment right protects you against self-incrimination. Even so, if they ask you about the “medical marijuana”, be sure to show them your recommendation letter and medical card.
Take a Formulation that Looks More Like Traditional Medication
If you have the choice between a pill form and an oil form, take the pill form. It looks more like regular prescription medication and is less likely to arouse any suspicion from an inspector conducting a screening. If you inhale medical marijuana, traveling with an oil form is better than with a bag of leaves. The latter gives off more of a scent and looks more like an illegal substance than a cartridge of oil that won’t scream “illegal” to an agent searching your bag.
Take What You Need, Not More
This one is kind of obvious. Only take what you need. If you are traveling to another state for two weeks, take just the two-week supply so you only need to travel with medical marijuana in one direction. If you are traveling with a vaporizer, then you only need to bring the vape back.
Only Travel from the States that Issued You a Card
Even if you are caught by TSA and turned over to local authorities, if you have a medical card from that state, you will technically be in compliance with local laws. However, this only applies if you are in the state that issued you a state-authorized medical card.
Having a medical card doesn’t enable you to carry medical marijuana anywhere. If you have a New York Medical Card, then you can legally possess medical marijuana in New York but not in California, and vice versa. Therefore, displaying a medical card to local authorities will only help if you have a medical card from that state.
Don’t Conceal It But Don’t Flaunt It
You are better off leaving marijuana in your bag than stuffing a cartridge of marijuana oil into a hair dryer. This looks like the behavior of someone who is guilty of something and may trigger an alarm when your bag goes through an X-ray scanner because TSA agents are trained to look for things that seem out of place. At the same time, you are probably better keeping it in a container that isn’t labeled with the word “marijuana”. Rather transfer it from the original and more obvious packaging to an unlabeled pill container.
Relax, you aren’t a criminal
If you are willing to take the risk of travelling with marijuana on an airplane because you need it for medical reasons, you are not a criminal. The law against people traveling with a medicine they are allowed to regularly use is arcane and illogical and everyone knows it doesn’t make sense. You aren’t a drug mule operating for Pablo Escobar’s Medellin Cartel. You are a patient who legitimately requires this medication. That is the truth. You have permission to relax and act innocent, because you are.
Checked Bag Versus Carry-on
There may be an advantage to having the medical marijuana in your carry-on baggage. TSA will put checked-in bags through the same X-rays as carry-on baggage and a percentage of these bags get opened and searched. If this does happen to you, you won’t have the opportunity to explain that the “unknown substance” is your “medicine.” If you are a 60-year-old female who doesn’t look suspicious, this may work in your favor. On the other hand, if you are the very anxious type who would break out in a sweat and have a panic attack in the highly unlikely event that an agent asked about the substance, leave it in your checked luggage. Make sure, however, to include a copy of your medical card and certification with it. It was reported that Melissa Etheridge, the musician, did just this. In her checked baggage she had a doctor’s letter near the medical marijuana she was using for cancer-related pain. The letter she received from TSA, informing her that her baggage was inspected, was left right on top of her supply of medical marijuana, which had not been seized.
Where You are Traveling Makes a Difference
If you are traveling to a state where marijuana is legal for recreational and medical use, like Colorado, you are likely to find airport TSA agents are more sympathetic to medical marijuana than in a state like Oklahoma, where neither recreational nor medical marijuana is legal. So if you need a deciding factor for your next vacation destination and you plan to be traveling with medical marijuana, take this map into consideration.
Traveling Between Two states with Medical Marijuana Laws
When possible, make sure the medical marijuana you’re carrying with you is in compliance with the medical marijuana laws of both the state you’re flying from and the state you’re flying to. If edibles aren’t legal in your destination (they aren’t in New York), then travel with an oral form of medical marijuana that is legal there.
While domestic travel screening generally focuses on prevention of terrorism with dogs sniffing for explosive odors rather than marijuana, the dogs used by customs and border protection agents are more likely to be trained in detecting illicit drugs. The same may be true for foreign customs’ practices outside of the United States. If you need to travel out of the country and are planning on taking your medical marijuana with you, it makes sense to first look into the laws of all the countries you are traveling through before making a final decision.
Even though it’s still illegal to travel with medical marijuana, you are literally more likely to get hit by an asteroid than get into trouble for flying domestically in the US with this banned substance. Many passengers choose to take the risk of traveling with medical marijuana, especially when flying with medical marijuana within the United States and between states that have legalized it for medical purposes. If you do travel with medical marijuana, you should still take precautions to mitigate any risk, such as leaving the marijuana in your carry-on baggage, carrying a copy of your doctor’s note and medical marijuana card, and traveling with the minimum required amount that you will need to use while you are away.
Dr. Michael Morgenstern is a double board certified neurologist. He treats patients with medical marijuana at Morgenstern Medical at locations in Manhattan, New Hyde Park and Hicksville. He is the founder of the NY Medical Marijuana Association. He can be reached at [email protected]