Industry, Advocates, Lawmakers React to Cole Memo Rescission

U.S. Attorney General Jeff Sessions's move to rescind the Cole Memo days after adult-use sales began in California is creating a backlash among lawmakers and the cannabis industry.

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U.S. Attorney General Jeff Sessions on Thursday rescinded the Cole Memo, an informal order that provided a shield from prosecution for businesses and consumers who complied with state marijuana laws from federal prosecution.

The “Sessions Memo” instructs federal prosecutors to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community” when deciding whether to prosecute growers, sellers, and users of marijuana.

Sessions released the memorandum, addressed to all United States Attorneys, less than one week after the sale and use of recreational marijuana became legal in California. One day earlier, on Jan. 3, he appointed 17 interim U.S. Attorneys to fill vacancies created when President Donald Trump ordered mass resignations in March.

Industry insiders, attorneys, advocates, and politicians reacted swiftly and strongly to the Sessions Memo.

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“This news from the Department of Justice is disturbing, especially in light of the fact that 73 percent of voters oppose federal interference with state cannabis laws,” National Cannabis Industry Association Executive Director Aaron Smith said in a statement. “But, the rescinding of this memo does not necessarily mean that any major change in enforcement policy is on the horizon. This has been, and still will be, a matter of prosecutorial discretion. We therefore hope that Department of Justice officials, including U.S. Attorneys, will continue to uphold President Trump’s campaign promise to not interfere with state cannabis programs, which have been overwhelmingly successful in undercutting the criminal market.”

While attorneys who represent cannabis businesses voiced distaste for Sessions’s move, many cautioned against panic and advised the industry to “wait and see.”

“It is important to note that while the Attorney General has this morning replaced the Cole Memorandum with the prosecutorial discretion of individual U.S Attorneys in states where marijuana has been legalized by the will of the people in those states, at least one Republican member of the Senate Judiciary Committee has already publicly stated that he intends to hold up confirmation of President Trump’s nominees for those Justice Department posts in light of today’s announcement from the Justice Department,” said attorney Bradley Blommer of Green Light Law Group in Portland, Oregon. “For now, we all need to understand that this does not signal the end of the medical or legal cannabis industry … and that licensed cannabis businesses continue to be protected under state laws and to some extent, the U.S. Constitution.”

His colleague, Perry N. Salzhauer, added, “While we can expect a slight chill in investment into marijuana businesses in the short term, we really need to wait and see whether today’s rescission will be followed up with any actual new policy directives from Mr. Sessions’s office to the individual U.S. Attorneys, and how those, if any are issued, are implemented before we really understand the full scope of today’s announcement.

“Keep in mind that while today’s memo from the AG rescinds the 2013 Cole Memo, it does not direct the Criminal Division at the main U.S. Justice Department and [Drug Enforcement Administration] Headquarters to begin a new campaign to prosecute legal state marijuana businesses,” Salzhauer continued. “The reality today is that each state needs to look to its own U.S. Attorney for guidance, and given that most U.S. Attorneys have political ambitions, many may be reluctant to buck public opinion, which is overwhelmingly in favor of legalized and regulated marijuana.”

Eco Firma Farms Chief Executive Officer Jesse Peters echoed the call to hold U.S. Attorneys and politicians accountable to the will of voters.

“Today we must determine the cannabis reform positions held by our local federal prosecutors,” said Peters, a veteran and cultivator. “Cannabis has higher approval ratings than apple pie, and our country watches with heavy hearts as it’s often disregarded by those positioned to represent the will of the people. This needs to be addressed. Call your representatives, call your congresspeople, and be heard. It is our duty and our right to speak out—a privilege we are afforded by the sacrifices of many.”

Mason Walker, CEO of East Fork Cultivars, said the issues in play are much larger than Sessions has considered.

“Attorney General Jeff Sessions’s move today to rescind the Cole Memo is an unfortunate blow to the progress the cannabis industry has made towards ending the destructive and demeaning War on Drugs,” he said. “Our fate now lies in part in the hands of U.S. Attorneys, who have an important choice to make: Turn back the clock and embolden the illegal market, or look forward and protect health and human rights by providing safe access for adults.”

Neal Levine, chairman of the New Federalism Fund, an organization that advocates for state regulation of marijuana, called Sessions’s decision an example of federal overreach.

“Going after the state legal and regulated cannabis industry would not only damage the economies and undermine public safety in the states that have opted out of federal cannabis prohibition, it would also export all of our legal cannabis jobs to Canada and other countries,” he said. “That will not make America great again. It would be a tremendous mistake, and a violation of the core principles of Federalism, for the federal government to interfere with the states and shift all of those jobs and revenues back to drug cartels and other criminal actors.”

REL Vape Sales and Marketing Director Sabrena Peterson was equally critical of Sessions’s apparent departure from the Trump agenda.

“Setting aside the will of the voters who approved medical and recreational use throughout the country and the billions of dollars that states stand to collect in tax revenues from the cannabis industry, rescinding Cole guidance runs contrary to this administration’s agenda of job creation, smaller government, states’ rights and deregulation,” she said.

On the federal level, both Republicans and Democrats took exception to Sessions’s move. U.S. Senator Cory Gardner (R-CO) said Sessions broke his earlier promises about how he would handle marijuana enforcement.

“With no prior notice to Congress, the Justice Department has trampled on the will of the voters in [Colorado] and other states,” Gardner said via Twitter.

U.S. Senator Bernie Sanders (D-VT), also weighed in right away.

“Marijuana is not the same as heroin,” Sanders told The Hill. “No one who has seriously studied the issue believes that marijuana should be classified as a Schedule 1 drug beside killer drugs like heroin. Quite the contrary. We should allow states the right to move toward the decriminalization of marijuana, not reverse the progress that has been made in recent years.”

Brach Eichler, a New Jersey attorney who specializes in marijuana law, questioned whether Sessions’s decision would be meaningful enough to derail legalization momentum in the Garden State. Eichler called the decision to rescind the Cole Memo “more symbolic than practical.”

Steve Deangelo, cannabis activist and founder of Harborside Health Center, also wondered whether Sessions’s action will have much impact on the industry.

“Chances are remote that Sessions’s action will significantly impact the legal cannabis industry,” he said. “All the rescission does is affirm the existing power of U.S. Attorneys to exercise prosecutorial discretion as regards state-licensed cannabis businesses—and it is highly unlikely they will decide that legal, licensed, tax-paying cannabis businesses are their highest enforcement priority. Anybody residing in a reform state knows firsthand that legalization enhances public safety by disempowering criminal cartels, raising hundreds of millions of tax dollars, and freeing police to focus on real crimes. At the same time, the nation is being swamped by an opioid crisis that is the largest killer of young people and has reduced the overall longevity of Americans for the first time in decades. It’s difficult to imagine that a U.S. Attorney would decide to spend limited law enforcement dollars targeting legal, licensed cannabis businesses instead of illegal opioid dealers.”

Whatever happens next, cannabis has proven its resilience and popularity. Now may be no more than another opportunity to do so.

“This is a speed bump in the industry,” said Eco Firma Farms’s Peters. “There is no coincidence that this announcement came three days after California implemented sales to adults 21 and over. It is an attempt by the current administration to slow the flow of cash from investors into a state that can make an unstoppable dent in full legalization. It is a tough day for those of us who have worked so hard to get here, but nothing we are not used to. We will persevere.”

 

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