Preparing for a smooth airport experience can feel like trying to hit a moving target. Will security ask for your ID or your boarding pass? (It depends.) Will officers confiscate your lobster? (You’re good, actually.) Will you be forced to gate-check your carry-on? (Who knows.)
The process gets even more complicated when marijuana is involved.
While cannabis is — for the most part — illegal to use or possess on a national level under the Controlled Substances Act, some of the country’s states and territories as well as D.C. have been loosening restrictions, and in very different ways, since 1996.
To date, 24 states and D.C. have legalized recreational pot, and 41 states and D.C. have legalized it for medical use. Other states have moved to decriminalize cannabis but not legalize it altogether.
And in April, President Donald Trump’s administration downgraded medical marijuana from a Schedule I classification (the same as heroin) to a Schedule III classification (on par with some common prescription painkillers). The order did not change laws on recreational use.
So what does that mean for the traveling public? We spoke with legal experts to find out exactly what you need to know about flying domestically with pot.
So, to be clear, can I fly with marijuana?
Recreational pot remains illegal under federal law, and the federal government regulates air travel, which means “technically, it is illegal to travel with adult-use recreational marijuana,” said Joshua S. Bauchner, a cannabis law attorney in New Jersey.
It doesn’t matter whether you’re flying to, from or within a state where pot use is legal.
Since medical marijuana’s reclassification to a Schedule III substance, the Transportation Security Administration now says travelers can bring medical marijuana through security in checked or carry-on bags “with special instructions,” but the agency website does not specify what those special instructions are.
Additionally, medical marijuana may still be considered illegal to possess depending on the state where you are traveling.
Legality aside, most major commercial airlines forbid passengers to bring marijuana (even medical) on board.
What happens if TSA finds marijuana in someone’s luggage?
Seth A. Goldberg, a partner at the law firm Pashman Stein Walder Hayden P.C., says the answer depends on how much pot is found, whether it’s medical or recreational, and whether the traveler has a medical card.
“Smaller amounts and medical seem to have a greater chance of being unnoticed or left alone,” Goldberg said in an email.
If you appear to be transporting a large amount of pot to sell, consequences could be more severe.
“Obviously if your suitcase is full with a few pounds … bad idea,” Bauchner said.
On its website, TSA says that its primary concern is passenger safety and detecting potential threats to aviation, and that officers do not search for illegal drugs. “But if any illegal substance or evidence of criminal activity is discovered during security screening, TSA will refer the matter to a law enforcement officer,” the policy continues.
Goldberg has heard of TSA confiscating small amounts of pot “without referring to law enforcement,” he said. “I suppose a large amount might raise concerns and result in a referral.”
The outcome will also depend on where you’re traveling, said Steve Levine, who leads the cannabis practice at Husch Blackwell.
Some airports, including Chicago O’Hare International and Los Angeles International, have announced they will not stop outbound passengers in possession of small amounts of marijuana. Meanwhile, in a state with strict cannabis laws, such as Idaho, finding a joint in your bag might be seen as “a much more serious offense,” Levine said.
What should I do if I get to the airport and still have pot?
If you’re worried about TSA finding pot in your bag, “probably the safest way to deal with this is to throw it away,” Levine said.
At some airports, including Harry Reid International Airport in Las Vegas and O’Hare, travelers will find pot “amnesty” boxes installed at security where they can toss cannabis products without penalty.
What if I have a medical marijuana ID card?
Goldberg notes that TSA has not been clear about whether a medical marijuana card is sufficient documentation for medical marijuana in a carry-on or checked bag. But since the agency says it does allow medical marijuana in a carry-on or checked bag, having a medical marijuana card could get you out of a bind if an agent pulls it from your bag.
However, an agent could still pass you off to the local police, who will assess the situation. If there’s no medical marijuana program there, a card could be meaningless.
Can I fly with CBD?
As long as your CBD product contains no more than 0.3 percent THC, or is approved by the Food and Drug Administration, you can bring it on a flight. If the product is a liquid or food, it must comply with the usual TSA carry-on policy (3.4 ounces or less per liquid item, for example).
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