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Is It Legal to Barter With Marijuana?

By Lisa M. Schaffer, Esq. | Last updated on

Recently in the news, an Oregon man tried to barter his weed for someone's SUV. In that state, it's illegal to sell weed without a commercial license. The man didn't have a commercial license to sell weed, and what he had on him was roughly five pounds over the legal limit for personal use. He was arrested for unlawful delivery of marijuana for consideration. But it brings up a good question. Is it ever legal to barter with marijuana?

What Exactly Is Bartering?

Bartering is when two people exchange goods without the use of money. Oral contract laws normally come into play when dealing with barter, as evidenced by the Oregon arrest. In a contract, each side must be bound to do, or not do, something to which they are legally entitled. This is called "consideration."

However, illegal items can never be consideration. And it is illegal to possess more than an ounce of marijuana without a commercial license. An ounce on the street costs about $300, so it's possible some bartering might be legal up to that limit. Not enough for a new car, but maybe an old car? Or a scooter?

Is a Trade a Sale?

If we try to look outside of criminal law to define "bartering," it looks a bit more like selling rather than just "exchanging goods." According to the IRS, bartering is pretty much the same as buying and selling. If you barter for something else, you have to account for the income of the item you received by declaring the fair market value of the item on your tax return. In this scenario, the party that reports they received an SUV is in better legal shape than the party that has to report the weed.

But in staying on topic, if the IRS treats bartering like buying or selling goods, and if it is illegal to sell marijuana without a license, then using IRS laws, it would be completely illegal to barter with marijuana.

What If You Called It "Mutual Gifting" Instead of "Bartering"?

In Oregon, and in almost any state in which recreational marijuana is legal, you can gift someone up to an ounce of marijuana, so long as they are over 21. As they say, a friend with weed, is a friend indeed! But, you can usually only gift up to an ounce of marijuana. So in the case of the weed/SUV swap, this could not be a gift for a gift. But if it were only an ounce, that might be OK. One has to wonder, if it was an installment gift, of, say, one ounce of marijuana per week for life, maybe you could get a truck!

To date, no one has successfully been able to legally barter with weed. One attorney in the south did try to use the defense, but failed. In another instance, an Oregon man tried to trade a pound for a snowmobile, and that didn't work in front of a judge either. But ads bartering less than an ounce of weed for groceries on Oregon Craigslists do exist. So there's food for thought!

If you are considering bartering with weed, contact a criminal defense attorney fist. In times like these, an ounce of prevention could be worth way more than a pound, or gram, of cure.

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