On January 4, 2018, Attorney General Jeff Sessions announced the recision of the 2013 Cole Memorandum (“Cole Memo”), issued by the Department of Justice (“DOJ”) during the Obama Administration. The Cole Memo provided guidance (i.e. non-legally-binding policy) to law enforcement agencies and federal prosecutors concerning the enforcement of federal laws prohibiting the possession, manufacture, and distribution of marijuana in legalized states. While the Cole Memo never prohibited or prevented federal prosecutors from pursuing charges against individuals in legalized states, it provided state agencies with an incentive to establish, implement, and enforce stringent regulatory oversight of medical and recreational cannabis markets by providing states with a list of specific DOJ enforcement priorities.

In rescinding the Cole Memo guidance, Sessions said DOJ guidance specific to enforcement of the federal Controlled Substances Act was “unnecessary,” and prosecutors should follow the “well-established principles” governing all federal prosecutions, even when it comes to enforcement of marijuana laws.” The precise impact of the policy reversal remains unknown, but it is important to understand that the decision to rescind the Cole Memo has no immediate legal effect, as it was never a bar or safe harbor against federal prosecution under the Controlled Substances Act, and the DOJ reserved the right to bring charges regardless of the Cole Memo’s existence.  In this sense, despite the alarming headlines, the decision to pursue criminal charges against individuals in violation of federal law was and will remain a matter of prosecutorial discretion.

It is also important to note that patients, caregivers, and operators in medical cannabis states that are in unambiguous compliance with state law are currently protected by a federal budget provision called the Rohrabacher-Blumenauer Amendment, formerly known as the Rohrabacher-Farr Amendment. The Rohrabacher-Blumenauer Amendment prohibits the Department of Justice from using federal funds to prevent states from implementing laws legalizing the growth, cultivation, and sale of medical cannabis. The Rohrabacher-Farr Amendment was first passed in 2014 as part of a short-term appropriations bill and has been continuously renewed by federal lawmakers via stop-gap spending measures.

In 2016, the Ninth Circuit Court of Appeals held that the Rohrabacher-Farr amendment prevented DOJ from prosecuting individuals in medical cannabis states that remain in full compliance with the applicable state’s medical cannabis laws and regulations. To be clear, the 9th Circuit Court ruling is not legally binding in states located outside of the 9th Circuit, but DOJ officials were reluctant to continue cracking down on the industry outside of the 9th Circuit in light of the decision. The provision is currently in effect until at least January 19th, 2018, when Congress must approve additional spending legislation in order to avoid a federal government shutdown. While adult-use cannabis programs are not protected by the Rohrabacher-Farr Amendment, every recreational cannabis state has a medical cannabis program as well, so federal prosecutors could have difficulty distinguishing between both programs for purposes of prosecution, providing little incentive for federal enforcement actions even in recreational cannabis states.

With a majority of U.S. states having legalized medical cannabis in some form, federal prosecutors lack the resources necessary to pursue charges against individuals in every legalized state. Bob Troyer, U.S. Attorney for the District of Colorado, issued a statement in response to Sessions’ announcement, saying his office will continue its previous approach to prosecutions against operators, patients and customers in the cannabis industry by “focusing on identifying and prosecuting those who create the greatest safety threats.”  Neither Acting U.S. Attorney for the District of Maryland, Steve Schenning, nor U.S. Attorney for the District of Columbia, Jessie K. Liu, has issued a statement regarding the DOJ policy change, but we will provide an update as this story develops.