1. The Cole Memo that Attorney General Jeff Sessions rescinded on January 4, 2018 was a Department of Justice (DOJ) Guideline. It was NOT in any way, shape or form a law. This is also true of the new cannabis-related memo issued by Sessions on the same day.
2. The Cole Memo was a mixed bag for the cannabis industry. On the one hand, it stated that the DOJ should not interfere with state-legal medical-use cannabis operations. On the other, it did NOT make such suggestions regarding interference with state-legal adult-use, and it DID call marijuana dangerous, while also stating that the growing and distribution of marijuana is a federal crime.
3. In A.G. Sessions’ new memo he states, “marijuana is a dangerous drug [and] marijuana activity is a serious crime.” Sounds familiar, right? The big difference is that this new memo does NOT explicitly dissuade the DOJ from interfering with state-legal medical-use cannabis. Instead it directs federal prosecutors to decide which cases to prosecute and to “weigh all relevant considerations, including federal law enforcement priorities” in making such decisions.
As such, federal prosecutors could base any decision to prosecute on whether a potential defendant’s actions were state-legal. That’s best case. Worst case, federal prosecutors could file civil or criminal actions against state-legal cannabis activities. However, it should be noted that this could (and in many cases did) also happen under the Cole Memo. To date, U.S. attorneys in some active federal districts within California have stated maintenance of the status quo as far as priorities and resource allocation.
4. Medical cannabis may be in better shape than adult-use cannabis. The reason for this is the federal budget provision known as the Rohrabacher–Blumenauer amendment, enacted in 2014 and renewed annually since that time. As an amendment to the federal spending bill, Rohrabacher–Blumenauer prevents the DOJ from spending resources to prosecute state-legal medical-use cannabis operations. This IS law. Unfortunately, the amendment is silent with regards to adult-use.
Furthermore, the amendment is set to expire on January 19, unless renewed. If not renewed, this could bode poorly for both medical and adult-use operators in light of the language in the Sessions memo. Rohrabacher–Blumenauer has thus far persisted with bipartisan support, and we urge you to contact your congressional representatives to make your opinions on renewal known.
Law Offices of James P. Marion, Esq. will be following this situation as it develops, and providing updates and further information where appropriate.
Disclaimer: This article is intended to provide general information only, and should not be construed as formal legal advice or the formation of an attorney-client relationship. You should not act or refrain from acting based on the materials contained herein and The Law Offices of James P. Marion, Esq. explicitly disclaims any liability for your action or inaction based on the contents of this article.