Appeal of Andrew Panaggio

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Compensation Appeals Board
No. 2019-0685

APPEAL OF ANDREW PANAGGIO
(New Hampshire Compensation Appeals Board)

Argued: November 10, 2020
Opinion Issued: March 2, 2021

Shaheen & Gordon, P.A., of Manchester (Jared P. O’Connor on the brief
and orally), for the petitioner.

Tentindo, Kendall, Canniff & Keefe LLP, of Boston, Massachusetts
(Robert S. Martin on the brief and orally), for the respondent.

Robinson & Cole LLP, of Providence, Rhode Island (Dana M. Horton on
the brief), for American Property Casualty Insurance Association, as amicus
curiae.

HICKS, J. The petitioner, Andrew Panaggio, appeals the determination of
the New Hampshire Compensation Appeals Board (Board) that the respondent,
CNA Insurance Company (the insurer), cannot be ordered to reimburse him for
his purchase of medical marijuana because such reimbursement would
constitute aiding and abetting his commission of a federal crime under the
Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. (2018). We reverse
and remand.
I. Background

This case returns to us following our decision in Appeal of Panaggio, 172
N.H. 13 (2019). We repeat the facts set forth in Panaggio as necessary to
decide the instant appeal.

Panaggio suffers from ongoing pain as a result of a 1991 work-related
injury to his lower back. Panaggio, 172 N.H. at 14. He is a qualified patient in
the State’s therapeutic cannabis program and has a New Hampshire cannabis
registry identification card. Id.; see RSA 126-X:4 (Supp. 2020). The insurer
declined to reimburse him for the purchase of medical marijuana on the
ground that it was not reasonable or medically necessary. See Panaggio, 172
N.H. at 14. When Panaggio appealed the insurer’s denial to the New
Hampshire Department of Labor, a hearing officer agreed with the insurer. Id.
Panaggio appealed the hearing officer’s decision to the Board, which
unanimously found that his use of medical marijuana is reasonable and
medically necessary. Id. Nonetheless, the Board upheld the insurer’s refusal
to reimburse Panaggio, concluding that “the carrier is not able to provide
medical marijuana because such reimbursement is not legal under state or
federal law.” Id. (quotations omitted).

Panaggio appealed the Board’s decision to this court. We concluded that
the insurer’s reimbursement for the purchase of medical marijuana would not
violate state law. See id. at 16-17. However, because the Board “did not cite
any legal authority for its conclusion, much less identify a federal statute that,
under the circumstances of this case, would expose the insurance carrier to
criminal prosecution,” we vacated its determination that the reimbursement
would violate federal law. Id. at 19 (emphasis omitted). We remanded so that
the Board could “articulate the law that supports [its] legal conclusion” and
“provide an adequate explanation of its reasoning regarding federal law.” Id.

On remand, the Board unanimously found that were the insurer “to pay
for Mr. Panaggio’s prescription medical marijuana it would commit a federal
crime . . . by aiding and abetting Mr. Panaggio’s illicit purchase and
possession.” Accordingly, the Board ruled that, under federal preemption
principles as articulated by the Maine Supreme Judicial Court in Bourgoin v.
Twin Rivers Paper Co., 187 A.3d 10, 13-22 (Me. 2018), the insurer could not be
ordered to reimburse Panaggio for his purchase of medical marijuana. This
appeal followed.

II. Analysis

A. Standards of Review

We will not disturb the Board’s decision absent an error of law, or
unless, by a clear preponderance of the evidence, we find it to be unjust or

2
unreasonable. Panaggio, 172 N.H. at 15; see RSA 541:13 (2007). The
appealing party, here Panaggio, has the burden of demonstrating that the
Board’s decision was erroneous. Panaggio, 172 N.H. at 15. All findings of the
Board upon questions of fact properly before it are deemed to be prima facie
lawful and reasonable. Id.; see RSA 541:13. Thus, we review the Board’s
factual findings deferentially and its statutory interpretation de novo.
Panaggio, 172 N.H. at 15.

The issue before us raises a question of federal preemption, which is
essentially a matter of statutory interpretation and construction. Hendrick v.
N.H. Dep’t of Health & Human Servs., 169 N.H. 252, 259 (2016). When
interpreting a statute, we begin with the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.
Id. We interpret federal law in accordance with federal policy and precedent.
Id.

B. Federal Preemption Principles

The federal preemption doctrine is based upon the Supremacy Clause of
the United States Constitution, U.S. CONST. art. VI, cl. 2. In the Matter of
Braunstein & Braunstein 173 N.H. 38, 41 (2020), cert. denied, No. 20-267,
2020 WL 6551782 (U.S. Nov. 9, 2020). Article VI provides that federal law
“shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2.

“Two basic principles guide all preemption analyses.” Erwin
Chemerinsky, Jolene Forman, Allen Hopper, & Sam Kamin, Cooperative
Federalism and Marijuana Regulation, 62 UCLA L. Rev. 74, 104 (2015). “First,
the purpose of Congress is the ultimate touchstone in every pre-emption case.”
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotation omitted). Second, “[i]n all
pre-emption cases, and particularly in those in which Congress has legislated
in a field which the States have traditionally occupied, we start with the
assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest purpose
of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quotations,
ellipsis, and citation omitted).

Broadly speaking, there are three different types of federal preemption:
“express,” “field,” and “conflict.” See Murphy v. National Collegiate Athletic,
138 S. Ct. 1461, 1480 (2018). Express preemption occurs when Congress
“preempt[s] state authority by so stating in express terms.” Pacific Gas & Elec.
Co. v. Energy Resources Comm’n, 461 U.S. 190, 203 (1983). “Field preemption
occurs when federal law occupies a ‘field’ of regulation so comprehensively that
it has left no room for supplementary state legislation.” Murphy, 138 S. Ct. at

3
1480 (quotation omitted). “Conflict preemption” may occur either when “it is
impossible for a private party to comply with both state and federal
requirements,” English v. General Electric Co., 496 U.S. 72, 79 (1990), or when
compliance with both state and federal laws is possible, Sikkelee v. Precision
Airmotive Corp., 907 F.3d 701, 709 (3d Cir. 2018), but state law “stands as an
impermissible obstacle to the accomplishment and execution of the full
purposes and objectives of Congress,” Virginia Uranium, Inc. v. Warren, 139 S.
Ct. 1894, 1907 (2019) (plurality opinion) (quotation omitted).

“[T]hese categories are not rigidly distinct.” Id. at 1901 (plurality opinion)
(quotation omitted). However, “at least one feature unites them: Invoking some
brooding federal interest or appealing to a judicial policy preference should
never be enough to win preemption of a state law; a litigant must point
specifically to a constitutional text or a federal statute that does the displacing
or conflicts with state law.” Id. (plurality opinion) (quotation omitted).

C. Preemptive Reach of the CSA

Although it is an issue of first impression for this court, other courts
have considered whether the CSA preempts a state order requiring
reimbursement of an employee’s purchase of medical marijuana. The results
are mixed. Compare Bourgoin, 187 A.3d at 12 (concluding that “where an
employer is subject to an order that would require it to subsidize an employee’s
acquisition of medical marijuana[,] there is a positive conflict between federal
and state law, and as a result, the CSA preempts the [Maine Medical Use of
Marijuana Act] as applied”), with Hager v. M & K Const., 225 A.3d 137, 140
(N.J. Super. Ct. App. Div.) (finding no conflict between the CSA and the state
medical marijuana law where employer is ordered to reimburse employee for
his purchase of medical marijuana), cert. granted, 229 A.3d 20 (N.J. 2020).

Because the CSA contains a saving clause, “our task of statutory
construction must in the first instance focus on the plain wording of the
clause, which necessarily contains the best evidence of Congress’ pre-emptive
intent.” Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63 (2002) (quotation
omitted). Section 903 of the CSA provides:

No provision of this subchapter shall be construed as
indicating an intent on the part of the Congress to occupy the field
in which that provision operates, including criminal penalties, to
the exclusion of any State law on the same subject matter which
would otherwise be within the authority of the State, unless there
is a positive conflict between that provision of this subchapter and
that State law so that the two cannot consistently stand together.

21 U.S.C. § 903.

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 Section 903 “is an express invocation of conflict preemption.” Oregon
Prescription Drug Monitoring v. U.S. Drug, 860 F.3d 1228, 1236 (9th Cir.
2017). Some courts have ruled that, given the language in Section 903, the
CSA preempts a state law only under impossibility preemption, and not under
obstacle preemption. See Hager, 225 A.3d at 147 (“Congress has expressed its
intent in the plain language of the CSA that it only preempts a state law that
requires the performance of an action specifically forbidden by the federal
statute.”); see also County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d
461, 479-80 (Ct. App. 2008) (“Because [Section 903] preserves state laws
except where there exists such a positive conflict that the two laws cannot
consistently stand together, the implied conflict analysis of obstacle preemption
appears beyond the intended scope of [Section 903].” (emphases omitted)).
Other courts have disagreed. See Oregon Prescription Drug Monitoring, 860
F.3d at 1236; see also In re State Question No. 807, 468 P.3d 383, 390 (Okla.
2020).

For the purposes of this appeal, we assume without deciding that, even if
Section 903 refers only to impossibility preemption, we must still analyze
whether obstacle preemption applies. See Fourth Corner Credit Union v.
Federal Reserve Bank, 861 F.3d 1052, 1075 n.11 (10th Cir. 2017) (opinion of
Bacharach, J.); see also Geier v. American Honda Motor Co., 529 U.S. 861, 869
(2000) (‘‘[T]he saving clause . . . does not bar the ordinary working of conflict
pre-emption principles.’’); Geier, 529 U.S. at 873-74 (“The Court has
. . . refused to read general ‘saving’ provisions to tolerate actual conflict both in
cases involving impossibility and in ‘frustration-of-purpose’ cases.” (citation
omitted)); Wyeth, 555 U.S. at 612 n.4 (Alito, J., dissenting) (describing the
saving clause in the federal Food, Drug, and Cosmetic Act, which is worded
similarly to the saving clause in the CSA, as “not a traditional ‘saving clause,’”
and stating that “even if it were, it would not displace [the Court’s] conflict pre-
emption analysis”).

Therefore, we consider whether complying with a Board order requiring
the insurer to reimburse Panaggio for his medical marijuana purchase and
complying with the CSA is an impossibility and also whether such an order
“stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress” as reflected in the CSA. Oregon
Prescription Drug Monitoring, 860 F.3d at 1236 (quotation omitted).

1. Impossibility Preemption

We first address whether, as the insurer argues and as the Board ruled,
the insurer cannot be ordered to reimburse Panaggio for his medical marijuana
purchase because such an order would conflict with the CSA under the
impossibility preemption doctrine. In other words, we consider whether it is
impossible for the insurer to comply with both a Board order to reimburse
Panaggio and the CSA.

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 “Impossibility pre-emption is a demanding defense.” Wyeth, 555 U.S. at
573. It requires the party asserting preemption to show that it is “impossible
for a private party to comply with both state and federal requirements.” Merck
Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1672 (2019) (quotations
omitted); see Florida Avocado Growers v. Paul, 373 U.S. 132, 142-43 (1963) (“A
holding of federal exclusion of state law is inescapable and requires no inquiry
into congressional design where compliance with both federal and state
regulations is a physical impossibility . . . .”). Thus, “[w]hen federal law forbids
an action that state law requires, the state law is without effect.” Mutual
Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 486 (2013) (quotation omitted).
However, for impossibility preemption to apply, the conflict must be actual, not
hypothetical or speculative. See Exxon Corp. v. Governor of Maryland, 437
U.S. 117, 131 (1978) (explaining that “the possibility that the Maryland statute
may require uniformity in some situations in which the [federal statute] would
permit localized discrimination” is the “sort of hypothetical conflict” that “is not
sufficient to warrant pre-emption”); see also Solorzano v. Superior Court, 13
Cal. Rptr. 2d 161, 169 (Ct. App. 1992) (“[M]ere speculation about a
hypothetical conflict is not the stuff of which preemption is made.”).

Here, there is no direct conflict between the CSA and a Board order to
reimburse Panaggio for his medical marijuana purchase. See Vialpando v.
Ben’s Automotive Services, 331 P.3d 975, 979 (N.M. Ct. App. 2014). The CSA
does not criminalize the act of insurance reimbursement for an employee’s
purchase of medical marijuana.

Nonetheless, the insurer argues that there is an irreconcilable conflict
between the CSA, which forbids the possession and use of marijuana, see 21
U.S.C. § 844(a), and New Hampshire state law, which requires payment of
reasonable medical treatment causally related to a work injury, see RSA 281-
A:23, I (2010), here, payment for medical marijuana pursuant to a Board order.
See Panaggio, 172 N.H. at 16-17; see also RSA 126-X:3, III(a) (2015).
Consistent with the Board’s determination, the insurer contends that requiring
it to reimburse Panaggio for the purchase of medical marijuana “would invoke
conduct that violates federal law” because it constitutes aiding and abetting his
criminal activity. The insurer argues that, because it is impossible for the
insurer to comply with both state and federal law, “federal law prevails and
preempts the conflicting state law requirement.” We are not persuaded.

Under 18 U.S.C. § 2(a) (2018), “[w]hoever . . . aids, abets, counsels,
commands, induces or procures” the commission of a federal crime “is
punishable as a principal.” “Under § 2, aiding and abetting is not a separate
federal crime, but rather an alternative charge that permits one to be found
guilty as a principal for aiding or procuring someone else to commit the
offense.” United States v. Louis, 602 F. App’x 728, 730 (11th Cir. 2015)
(quotation omitted). “[T]o convict under a theory of aiding and abetting, the
government must prove that: (1) the substantive offense was committed by

6
someone; (2) the defendant contributed to and furthered the offense; and (3)
the defendant intended to aid in its commission.” Id.

The federal aiding and abetting statute “derives from (though simplifies)
common-law standards for accomplice liability.” Rosemond v. United States,
572 U.S. 65, 70 (2014). “As at common law, a person is liable under § 2 for
aiding and abetting a crime if (and only if) he (1) takes an affirmative act in
furtherance of that offense, (2) with the intent of facilitating the offense’s
commission.” Id. at 71.

“[T]he canonical formulation” of the state of mind needed for aiding and
abetting “is Judge Learned Hand’s: To aid and abet a crime, a defendant must
not just ‘in some sort associate himself with the venture,’ but also ‘participate
in it as something that he wishes to bring about’ and ‘seek by his action to
make it succeed.’” Id. at 76 (quoting Nye & Nissen v. United States, 336 U.S.
613, 619 (1949), which quoted United States v. Peoni, 100 F.2d 401, 402 (2d
Cir. 1938)). “[F]or purposes of aiding and abetting law, a person who actively
participates in a criminal scheme knowing its extent and character intends
that scheme’s commission.” Id. at 77.1

In Rosemond, the United States Supreme Court explained that “[a]n
active participant in a drug transaction has the intent needed to aid and abet”
an offense of using or carrying a firearm during such a transaction “when he
knows that one of his confederates will carry a gun.” Id. at 67, 77. By
participating actively in the crime with that knowledge, “he has chosen . . . to
align himself with the illegal scheme in its entirety — including its use of a
firearm. And he has determined . . . to do what he can to make that scheme
succeed.” Id. at 77-78 (quotation and brackets omitted). For liability to attach,
however, the “defendant’s knowledge . . . must be advance knowledge . . . ,
knowledge that enables him to make the relevant legal (and indeed, moral)
choice.” Id. at 78. The defendant must have “knowledge at a time [he] can do
something with it,” whether that be to go through with the plan, attempt to
alter it, or “opt to walk away.” Id. He must have knowledge at a point when he
has a “realistic opportunity to quit the crime.” Id. “[I]t is deciding . . . to go
ahead with his role in the venture that shows his intent to aid an armed
offense.” Id.

Panaggio contends that “[b]ecause state law gives the insurer no
discretion to choose whether to comply with state law once a finding is made
that the treatment at issue is reasonable and related to the work injury,” an
insurer that reimburses a workers’ compensation claimant for the purchase of

1In Rosemond, the Court distinguished between defendants who actively participate in, and those
who “incidentally facilitate,” a criminal venture. Rosemond, 572 U.S. at 77 n.8. The Court
explained that “the owner of a gun store who sells a firearm to a criminal, knowing but not caring
how the gun will be used,” incidentally facilitates the criminal’s crime. Id.

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medical marijuana is not guilty of aiding and abetting because the insurer
lacked the requisite mens rea. Panaggio asserts that “[w]hat justifies criminal
liability for an aider and abettor is that they elect by their own free will to
participate in the prohibited activity.” Panaggio reasons that “[b]ecause New
Hampshire law unambiguously requires the insurer to pay for the claimant’s
medically related treatment,” an insurer that reimburses a claimant for the
purchase of medical marijuana acts without the volition required by the federal
aiding and abetting statute.

Panaggio’s argument finds support in the dissent in Bourgoin and in the
opinion of the New Jersey Superior Court Appellate Division in Hager. The
majority in Bourgoin concluded that, by knowingly reimbursing an employee
for the purchase of medical marijuana, the employer would act “with
knowledge that it was subsidizing [the employee’s] purchase of marijuana,”
and, therefore, be guilty of aiding and abetting. Bourgoin, 187 A.3d at 19. The
dissent disagreed, observing that the employer in such a case would only
incidentally facilitate the employee’s criminal possession of marijuana and that
the employer’s mere knowledge would be insufficient to establish the requisite
intent element of aiding and abetting. Id. at 27 (Jabar, J., dissenting); see
Rosemond, 572 U.S. at 77 n.8 (distinguishing between “defendants who
incidentally facilitate a criminal venture” and those who “actively participate in
it”). Rather, the dissent asserted, the employer “must wish or desire to bring
about” the crime in order to establish the requisite intent. Bourgoin, 187 A.3d
at 27 (Jabar, J., dissenting); see Nye, 336 U.S. at 619 (“In order to aid and abet
another to commit a crime it is necessary that a defendant in some sort
associate himself with the venture, that he participate in it as in something
that he wishes to bring about, that he seek by his action to make it succeed.”
(quotation omitted)).

The New Jersey Superior Court Appellate Division in Hager concluded
similarly to the dissenting justices in Bourgoin. See Hager, 225 A.3d at 148.
There, the court ruled that an employer “complying with an order requiring it
to reimburse a person for the legal use of medical marijuana” lacked “the
requisite intent and active participation necessary for an aiding and abetting
charge.” Id. We agree with the reasoning of the dissenting justices in Bourgoin
and with the New Jersey Superior Court Appellate Division in Hager and
conclude that the insurer in this case, if ordered to reimburse Panaggio’s
purchase of medical marijuana, would not be guilty of aiding and abetting
Panaggio’s violation of the CSA because the insurer would not be an active
participant with the mens rea required by Rosemond.

The insurer asserts, in effect, that Panaggio’s argument leads to an
absurd result, observing that “[c]onflict preemption applies because state law
requires what federal law forbids.” (Emphasis added.) The insurer contends
that Panaggio’s mens rea argument “attempts to use the existence of the
conflict to defeat the conflict.” However, the insurer’s reasoning misses the

8
mark. If the CSA expressly forbade the insurer from reimbursing Panaggio for
his medical marijuana purchase, then the insurer would be correct. In that
case, federal law, the CSA, would indeed forbid what state law requires. But
the CSA does not forbid reimbursement. There is no impossibility here unless,
by reimbursing Panaggio, the insurer is guilty of aiding and abetting Panaggio’s
violation of the CSA. Panaggio’s point is that the insurer is not guilty of aiding
and abetting because it lacks the requisite mens rea.

For similar reasons, we also conclude that, contrary to the insurer’s
contention during the Board proceedings, the insurer would not be guilty of
conspiring with Panaggio to commit an offense under the CSA. See 21 U.S.C. §
846. Although the Board had no need to reach this issue, we decide it in the
first instance because it involves an issue of law. Conspiracy, similar to aiding
and abetting, requires voluntary participation. See United States v. Griffith,
928 F.3d 855, 869 (10th Cir. 2019) (setting forth the elements of conspiracy,
which include the defendant’s knowing and voluntary participation in the
conspiracy). As discussed, the insurer’s compliance with a court or Board
order to reimburse Panaggio for his medical marijuana purchase does not
constitute voluntary participation.

2. Obstacle Preemption

Having concluded that a Board order requiring the insurer to reimburse
Panaggio for the purchase of medical marijuana is not barred by impossibility
preemption, we next consider whether it would thwart the purposes and
objectives of the CSA. “A [party] making an argument under obstacle
preemption faces a heavy burden.” Noffsinger v. SSC Niantic Operating Co.
LLC, 273 F. Supp. 3d 326, 333 (D. Conn. 2017).

“The Supreme Court has found obstacle preemption in only a small
number of cases.” In re Volkswagen “Clean Diesel” Marketing, Sales, 959 F.3d
1201, 1212 (9th Cir. 2020), petition for cert. filed, (U.S. Jan. 21, 2021) (No. 20-
994). “First, where the federal legislation at issue involved a uniquely federal
area of regulation, the Court has inferred a congressional intent to preempt
state laws that directly interfered with the operation of the federal program.”
Id. (quotations and brackets omitted); see Chamber of Commerce of United
States of America v. Whiting, 563 U.S. 582, 604 (2011) (plurality opinion).
“Second, the Court has inferred that Congress made a considered judgment or
a deliberate choice to preclude state regulation when a federal enactment
clearly struck a particular balance of interests that would be disturbed or
impeded by state regulation.” In re Volkswagen “Clean Diesel” Marketing,
Sales, 959 F.3d at 1212 (quotations omitted); see Geier, 529 U.S. at 879-81
(holding that certain federal safety regulations “deliberately sought a gradual
phase-in” of airbags to give manufacturers more time and increase public
acceptance, and that state tort law requiring the immediate installation of

9
airbags would have “stood as an obstacle” to the phase-in program “that the
federal regulation deliberately imposed”).

“Absent such circumstances, the Supreme Court has frequently rejected
claims of obstacle preemption.” In re Volkswagen “Clean Diesel” Marketing,
Sales, 959 F.3d at 1213. For instance, the Court has declined to infer that
Congress intended to preempt state law merely because it overlaps with a
federal act. Id. This is particularly so “when the federal statute expressly or
impliedly preserves state laws that might overlap with a federal statute.” Id.;
see Whiting, 563 U.S. at 607 (plurality opinion). Thus, “[t]he mere fact of
‘tension’ between federal and state law is generally not enough to establish an
obstacle supporting preemption, particularly when the state law involves the
exercise of traditional police power.” Madeira v. Affordable Housing
Foundation, Inc., 469 F.3d 219, 241 (2d Cir. 2006); see Wyeth, 555 U.S. at 575
(“The case for federal pre-emption is particularly weak where Congress has
indicated its awareness of the operation of state law in a field of federal
interest, and has nonetheless decided to stand by both concepts and to tolerate
whatever tension there is between them.” (quotation and brackets omitted)).

Obstacle preemption “analysis does not justify a freewheeling judicial
inquiry into whether a state statute is in tension with federal objectives; such
an endeavor would undercut the principle that it is Congress rather than the
courts that pre-empts state law.” Whiting, 563 U.S. at 607 (plurality opinion)
(quotations omitted). “[A]ny evidence of pre-emptive purpose, whether express
or implied, must therefore be sought in the text and structure of the [federal]
statute at issue.” Virginia Uranium, Inc., 139 S. Ct. at 1907 (plurality opinion)
(quotations and brackets omitted). We cannot rely upon “unenacted purposes
and objectives” that we infer motivated Congress because “in piling inference
upon inference about hidden legislative wishes we risk displacing the legislative
compromises actually reflected in the statutory text.” Id. at 1908 (plurality
opinion). Indeed, “[t]he only thing a court can be sure of is what can be found
in the law itself.” Id. (plurality opinion). Therefore, Supreme Court “precedents
establish that a high threshold must be met if a state law is to be pre-empted
for conflicting with the purposes of a federal Act.” Whiting, 563 U.S. at 607
(plurality opinion) (quotation omitted).

According to the Court, “[t]he main objectives of the CSA were to conquer
drug abuse and to control the legitimate and illegitimate traffic in controlled
substances.” Gonzalez v. Raich, 545 U.S. 1, 12 (2005); see Pub. L. No. 91-513,
84 Stat. 1236 (1970) (setting forth the complete title of the “Comprehensive
Drug Abuse Prevention and Control Act of 1970” of which the CSA is a part);
see also 21 U.S.C. § 801 (setting forth congressional findings). “Congress was
particularly concerned with the need to prevent the diversion of drugs from
legitimate to illicit channels.” Raich, 545 U.S. at 12-13.

10
 “To effectuate these goals, Congress devised a closed regulatory system
making it unlawful to manufacture, distribute, dispense, or possess any
controlled substance except in a manner authorized by the CSA.” Id. at 13; see
21 U.S.C. §§ 841(a)(1), 844(a). “The CSA categorizes all controlled substances
into five schedules.” Raich, 545 U.S. at 13. “The drugs are grouped together
based on their accepted medical uses, the potential for abuse, and their
psychological and physical effects on the body.” Id. “Each schedule is
associated with a distinct set of controls regarding the manufacture,
distribution, and use of the substances listed therein.” Id. at 14.

“In enacting the CSA, Congress classified marijuana as a Schedule I
drug.” Id.; see 21 U.S.C. § 812(c). “Schedule I drugs are categorized as such
because of their high potential for abuse, lack of any accepted medical use, and
absence of any accepted safety for use in medically supervised treatment.”
Raich, 545 U.S. at 14; see 21 U.S.C. § 812(b)(1). “By classifying marijuana as a
Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture,
distribution, or possession of marijuana became a criminal offense, with the
sole exception being use of the drug as part of a Food and Drug Administration
preapproved research study.” Raich, 545 U.S. at 14; 21 U.S.C. §§ 823(f),
841(a)(1), 844(a).

The insurer argues, in a single sentence, that requiring it “to reimburse
[Panaggio] would frustrate Congress’s intent to control and regulate the traffic
and use of controlled substances.” However, we are unable to discern how
such reimbursement would stand “as an impermissible obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.” Virginia Uranium, Inc., 139 S. Ct. at 1907 (plurality opinion)
(quotation omitted). As previously discussed, the CSA does not make it illegal
for an insurer to reimburse an employee for his or her purchase of medical
marijuana. Cf. Noffsinger, 273 F. Supp. 3d at 330, 334 (considering whether
the CSA preempts a state law provision precluding certain forms of
employment discrimination against medical marijuana users, court observes
that “[t]he CSA . . . does not make it illegal to employ a marijuana user”). Nor
does it purport to regulate insurance practices in any manner. Cf. id. (noting
that the CSA does not “purport to regulate employment practices in any
manner”). Moreover, a Board order to reimburse Panaggio does not interfere
with the federal government’s ability to enforce the CSA. Regardless of whether
the insurer is ordered to reimburse Panaggio for his medical marijuana
purchase, the federal government is free to prosecute him for simple
possession of marijuana under the CSA. See 21 U.S.C. § 844(a). Under these
circumstances, we conclude that the “high threshold” for obstacle preemption
“is not met here.” Whiting, 563 U.S. at 607 (plurality opinion) (quotation
omitted).

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 For all of the above reasons, therefore, we reverse the Board’s decision
and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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