Dave Matthews Band, Colorado, and “Carriage” – What You Need to Know about Marijuana

Picture it with me: It’s a beautiful summer evening in the Rockies and you’ve got a Part 135 flight scheduled from JeffCo (okay, Rocky Mountain Metropolitan Airport) to Indianapolis. Your passengers have just attended a Dave Matthews Band concert at the lovely Red Rock Amphitheatre and minutes after Dave croons, “Smoke my mind / make me feel better for a small time” to a cheering audience , your “happy” passengers arrive for their return to Indianapolis. A half an hour into the flight your pilots notice an odd aroma from the back of the cabin. Or maybe they notice the passengers acting “funny” after consuming some cookies or chocolate bars they brought on board.

Is it legal for your passengers to use marijuana or cannabis-infused products in flight? After all you departed from a dope-legal state and are still in airspace over that state. What rules apply?

Let’s look at the regs.

§91.19 says, “(a) Except as provided in paragraph (b) of this section, no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.

(b) Paragraph (a) of this section does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.”

§135.41 states, “If the holder of a certificate operating under this part allows any aircraft owned or leased by that holder to be engaged in any operation that the certificate holder knows to be in violation of §91.19(a) of this chapter, that operation is a basis for suspending or revoking the certificate.”

(Note: Yes, the FAA spells maryjane “marihuana”. To me it looks Hawaiian spelled that way – as in “I’d like you to meet Marihuana, wife of the Big Kahuna.” But I digress…)

The words that flash in big red letters to me are “basis for suspending or revoking the certificate” (emphasis added). In other words, screw this up and you can lose your air carrier certificate. Just take it off the wall and hand it over. This is serious stuff to the FAA.

Next, remember that recreational marijuana is now legal in 2 states (Federalism! States’ rights!) but is still technically illegal on a federal level thus putting you in direct conflict with §91.19(a).

But what about §91.19(b) which exempts marijuana from the carriage prohibition if it is “authorized by or under any … State statute?” Don’t go there. I wouldn’t even try it. §91.19(b) essentially allows for the carriage of prescription narcotics, depressants, and stimulants, and medicinal marijuana. §91.19(b) was never intended to allow Cheetos-munching Fantasia-watching charter passengers take a toke cruise over the state of Colorado.

(Not to mention the concerns related to second-hand marijuana smoke. An enclosed airplane with recirculated air is not a diffuser of second-hand smoke.)

Could you force the FAA into an interpretation of §91.19 that includes recreational marijuana? Possibly. But even if you do, recreational marijuana becomes illegal again the moment you hit Kansas. (If you’ve ever lived in Kansas, you know this is a totally counter-intuitive concept. If ever there was a state that needed herbal happiness…)

Bottom line: Take a look at your company policies. Do you just mention §91.19 and/or §135.41 in passing in some random “policy” section of your GOM? Do you talk about marijuana at all? Now is the time to determine your company’s position on the carriage and use of marijuana on your aircraft. Part 91 and 135 operations typically don’t require baggage screening so it’s quite possible a passenger could have marijuana in their bags without your knowledge. Notice both §91.19 and §135.41 require “knowledge” of carriage, not the FAA’s more typical “known or should have known” standard. Unless your pilots have a nose like Fido, it could happen – a passenger could be carrying pot in their bag and you’d never know. But if your pilots have reason to suspect passengers are carrying or using marijuana they need to know the company’s position.

Will you support your pilots when they ask to search a wealthy, famous passenger’s bag because they suspect the passenger is carrying marijuana? If they believe a passenger is smoking marijuana or consuming THC-infused food items in flight, do they know you will back them up when they instruct the passengers to stop using the product? If the passengers don’t comply with the pilots’ instructions, do the pilots know you’ll stand by them when they divert to the nearest airport? If the passengers were smoking the product, should your pilots secure their own oxygen masks to avoid second-hand smoke? What are your company policies on these issues?

If you’ve never considered the possibility of a passenger carrying or using marijuana on your aircraft, now’s the time. Determine your company’s position, write formal policies, communicate them to your staff, educate your pilots and cabin personnel on signs of possible marijuana use, and then support them when they follow your policies.

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