When the U.S. Department of Justice announced it rescinded its policy and would now allow federal prosecution of violations of the Controlled Substances Act in states with legal marijuana, businesses nationwide, states enjoying incredible revenues from the regulated sale of both recreational and medical marijuana and cities that have used pot to reshape their economies immediately asked questions about what can happen. Here’s the top three things we have learned.
#1 Major Players Expect to Be Targeted
The first question EfficientGov had is are there specific cases the now-unleashed prosecutors are expected to push, and what are some expected consequences? Kellsi Booth, Associate Attorney for Premium Produce provided an answer via email:
“Because the DOJ has taken a hands-off approach to marijuana in states that have legalized it, there is little case law dealing with the prosecution of cannabis businesses at the federal level.
In Gonzales v. Raich, 352 U.S. 1 (2005), the Supreme Court uphold that the Controlled Substances Act prohibition on marijuana is a valid exercise of Congress’s Commerce Power. In United States v. Oakland Cannabis Buyers’ Coop. (OCBC), 532 U.S. 483 (2001), the Court similarly found there is no fundamental right to access marijuana as a form of medical treatment – deferring to Congress’s finding that marijuana has no acceptable medical use and high potential for abuse.
The takeaway point from these cases is that the Controlled Substances Act is the law of the land, and it can be fully enforced against those cultivating, distributing, selling and even possessing marijuana. If federal prosecutors do decide to take enforcement action, I would expect that they would use their limited resources to target major players in the industry and make an example out of them by prosecuting to the fullest extent of the law.”
Premium Produce, LLC is a Nevada-based cultivator and manufacturer of cannabis products for the state’s medical cannabis program, with applications filed for the recreational market. In addition, Booth represents Cali Premium Produce, Inc., which was awarded three adult use cannabis licenses from Lynwood, Calif., to cultivate cannabis, manufacture, and distribute medicinal and recreational cannabinoid products.
#2 Most Leaders From Legal Marijuana States Stand Firm
By lunchtime after the announcement, Senator Cory Gardner of Colorado took to the Senate floor to condemn Sessions’ actions.
Sen. Cory Gardner angrily responds to Attorney General Jeff Sessions’ memo on marijuana policy. “One tweet later, one policy later, a complete reversal of what many of us on the Hill were told before the confirmation.” https://t.co/NkJuIoh4fP pic.twitter.com/J4RZmkVM8U
— ABC News (@ABC) January 4, 2018
Gardner later posted on Twitter that he would take actions necessary — even hold up DOJ nominees — until Sessions backs off the legal marijuana business.
However, that doesn’t seem likely as Sessions in 2017 critiqued several states marijuana regulations, like that of Alaska, Colorado, Oregon and Washington, and citing them as ineffective in letters to their state governors, as reported by Marijuana Business Daily last August.
Yesterday, the publication reached out to nine states with recreational marijuana programs to suss out where affected governors stand and which state attorney generals may act, and found most expected marijuana to be “business as usual,” despite Sessions’ confusing announcement.
Brian Vicente, a cannabis attorney in Denver, said he does not expect to see dramatic enforcement efforts ensue,
But it’s certainly possible that U.S. attorneys around the country, perhaps in certain areas that do have marijuana laws, may choose to make this more of a priority,” he added.
#3 The Medical Marijuana Business Has a Legal Shield
Booth didn’t mince words when EfficientGov asked how the DOJ policy reversal will affect states:
“Because federal law preempts state law, this change in federal policy has created confusion and uncertainty for the states. However, the practical implications remain to be seen. Marijuana has always been a schedule I drug, and the Obama-era policies did not change that. Rather, the Ogden and Cole memos spelled out certain enforcement priorities that I believe are in keeping with the general federal prosecution guidelines Sessions refers to in his own memo. The fact of the matter is federal law is out of touch with reality.
The legalization and regulation of marijuana for medical and adult use is a growing trend that is sweeping across the nation. ‘Legal’ marijuana is the fastest-growing industry in the United States, and the states have shown that marijuana can be decriminalized and regulated safely and effectively. States should stand behind their laws, and help federal lawmakers understand that the decriminalization of marijuana has been a benefit rather than a detriment to their communities. Meanwhile, Congress should protect the will of their constituents and the marijuana businesses within their jurisdictions by moving forward with federal marijuana law reform.”
However, Kris Krane, managing partner of Boston-based 4Front Ventures, noted for Marijuana Business Daily that last month Congress renewed the Rohrabacher-Blumenauer Amendment — which prohibits DOJ from using federal funds to interfere with state medical marijuana programs — in the government spending bill.
The justice department and these U.S. attorneys are still, regardless of the Cole Memo, prohibited from cracking down on state-legal medical marijuana businesses,” Krane said.
However, the amendment must be renewed annually.