US Attorney General Jeff Sessions Rescinds Cole Memo, RLG Emphasizes Importance of Rohrabacher-Farr

The original text of this post appeared here – I would like to note that this is one of my pieces of which I am the most proud. I hope you enjoy it.

January 4, 2018

Today, in a disheartening development for the cannabis industry, US Attorney General Jeff Sessions issued a memo rescinding previous nationwide marijuana-specific enforcement guidance. The memo stated: “Given the Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.” The memo issued today specifically mentioned three memos written by former Deputy Attorney General James M. Cole, and memos written by former Deputy Attorney General David W. Ogden and Former Director of the Executive Office for U.S. Attorneys, Monty Wilkinson.

This is a signal for a major escalation in the war for states’ rights, a battle against the failed “War on Drugs,” a desperate fight for medical patients who could be deprived of cannabis-derived medicines that provided them lifesaving relief from symptoms of disease, and a brawl for the future of an industry that has dramatically improved the economic standing of countless communities in the United States. It is uncertain how Sessions’ rescinding of these memos will be handled by law enforcement, the Department of Justice (the “DOJ”), or state and local agencies.

Mr. Sessions’ actions have also served to highlight the tremendous stakes that are riding on the Rohrabacher-Farr, also known as the Rohrabacher-Blumenauer, amendment (the “Amendment”). The Amendment, which has been a staple of the federal omnibus spending bill since 2014, places strict limitations on the DOJ (and by extension the FBI, the DEA, and the ATF) regarding the use of federal funds on any enforcement action (prosecution, interdiction, investigation, etc.) against medicinal cannabis users, cultivators, distributors, and manufacturers in those states that have legalized it. It also gives broad protection for the distribution of US grown industrial hemp and is a vital component in the effort to normalize that multi-billion-dollar industry, which, although smaller than its more glamorous sister industry, will likely have a far greater economic and environmental impact on the country in the next five years.

In early May of this year, Congress extended the deadline for the vote on the omnibus bill until September as part of a deal to keep the federal government funded for a few more months. When the voting deadline approached again, instead of voting on it, the deadline was delayed a second time due to partisan fighting in Washington. The extension was to end on December 22, 2017, but is currently in limbo again. The new date that has been set for the vote on the omnibus bill, and therefore the Amendment, is now January 19, 2018. This is unacceptable. Politicians are playing politics with the health and well-being of a large number of Americans and a large number of Americans’ livelihoods. Oregon Representative Earl Blumenauer released the following statement in December: “Patients around the country who rely on medical marijuana for treatment—and the businesses that serve them—now have some measure of certainty. Our fight, however, continues to maintain these important protections in the next funding bill passed by Congress.”

In United States v. Macintosh, a case the Ninth Circuit ruled on in 2016, the court held that patients being prosecuted by the DOJ in states that have legalized medical cannabis were able to argue that the DOJ had overstepped their spending limits due to the Rohrabacher-Farr Amendment. More simply stated, if the patient was acting in compliance with state medical cannabis laws, the DOJ was not allowed to prosecute.

The Amendment does not rely on the Cole Memo (if the legislature keeps the Amendment in existence the revoking of the Cole Memo does not invalidate the Amendment), but it incorporates most of its “enforcement priorities” for cannabis-related activity, guidelines that allow for the regulation and oversight of legal medical cannabis sales at the state level. The Cole Memo addressed the following key points, which have been used as a framework for regulatory oversight in the growing cannabis industry:

  1. The prevention of distribution of cannabis to minors.
  2. The prevention of cannabis revenue being used to fund criminal enterprises, gangs or cartels.
  3. The prevention of cannabis being exported across state lines and into states where it isn’t legal.
  4. The prevention of state-legal cannabis sales as a cover for illegal activity.
  5. The prevention of violence and use of firearms in growing or distributing cannabis.
  6. The prevention of drugged driving or exacerbation of other adverse public health consequences associated with cannabis use.
  7. The prohibition of cultivation cannabis on public land.
  8. The prohibition of cannabis possession or use on federal property (national parks, government property, etc.)

The Obama administration viewed cannabis to be an issue of states’ rights, and then-candidate Trump echoed that sentiment last August in Denver, Colorado. For a President who ran on a pro-business agenda, it is a glaringly hypocritical move to allow his administration, specifically United States Attorney General Jeff Sessions and the Department of Justice, to roll back the Cole and Ogden Memos. States that have legalized cannabis at the state level chose—more importantly, the people of those states chose—to mandate that their governments to increase their funding through new tax revenue, create jobs, improve the health of their fellow citizens, reduce crime, promote tourism, and increase ancillary economic development.

There are currently 29 US states and Washington DC, Puerto Rico, and Guam that have some form of legalized cannabis, 21 of them permit the cultivation and sale of medical cannabis, and eight have passed legislation allowing for the sale and possession of recreational cannabis. Six states (Alaska, California, Colorado, Nevada, Oregon, and Washington) currently allow the sale of recreational cannabis. The cannabis industry is on track to have to add $10 billion to the GDP in 2017. It generates roughly $559 million in cannabis-specific tax revenue, and that number is growing quickly as more states legalize the sale of recreational cannabis. To be clear, that is taxation cash flow that currently does not (or did not) exist. People aren’t paying more in taxes and the government has more money to administer to its citizens. This money can be/is currently being put to good use in a variety of ways: public works projects; substance abuse treatment; education; and more. Any “small government” politician is playing lip service to this political slogan if they oppose support of the Amendment.

Jeff Sessions is a terrifyingly uninformed man when it comes to both the physical and mental effects of cannabis consumption. His views are out of touch with those of medical doctors, scientists and the general population, in other words the nearly 2/3 of Americans who support legalization of cannabis. His self-serving, fear mongering, and unrepentant racist agenda is despicable, and it is our hope that his actions, as well as the actions of those in the current Trump administration, do not interfere with the advancement of the cannabis industry; an industry that has breathed new life into both rural and urban economies, created jobs, and has created entirely new ancillary industries which support and surround the cannabis industry.

Obviously, we now will have to hope that the state Attorneys General will do everything in their power to protect these this new industry from prosecution, interference, and harassment, and we expect that they will, given the responses that have already come out from various lawmakers and elected officials. Colorado Senator Cory Gardner tweeted this morning, “This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation. With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states. I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”

Bernie Sanders said, “‏No, Attorney General Sessions. Marijuana is not the same as heroin. No one who has seriously studied the issue believes that. Quite the contrary. We should allow states the right to move toward the decriminalization of marijuana, not reverse the progress that has been made.”

Minnesota Representative Keith Ellison weighed in as well: “The war on drugs didn’t stop drug usage; it just ruined a lot of lives. Jeff Sessions is reviving it because he believes in using the criminal justice system as an instrument of racial and economic control of poor people and brown people.”

Earl Blumenauer, whose involvement in medical marijuana protections has led to the continuation of the Rohrabacher-Farr amendment, said, “This is outrageous. Going against the majority of Americans—including a majority of Republican voters—who want the federal government to stay out of the way is perhaps one of the stupidest decisions the Attorney General has made. One wonders if Trump was consulted—it is Jeff Sessions after all—because this would violate his campaign promise not to interfere with state marijuana laws. It’s time for anyone who cares about this issue to mobilize and push back strongly against this decision.”

With the looming expiration of the Rohrabacher-Farr Amendment, as well as the memo issued today by US Attorney General Jeff Sessions, we may see drastic shifts in policy in all states new to the cannabis industry, and we may see an increased focus by the DOJ on cannabis prosecutions, investigations, and general enforcement regardless whether or not state laws allow for the cultivation, sale, and consumption of cannabis for medical use. Cannabis is still considered a Schedule I substance, just like heroin despite the fact that public opinion clearly suggests that cannabis should, at the very least, be decriminalized and the majority support with full federal legalization. Almost 3/4 of American adults (73%, according to a poll published in April 2017 by Quinnipiac University) oppose medicinal cannabis prosecution by the federal government. For reference, cocaine and oxycodone are Schedule II substances.

Even green industry pioneer states like Colorado, which legalized both medical and recreational consumption several years ago, have been so concerned about the Trump Administration’s cannabis stance that they have been considering enacting law to protect the cannabis industry in the state by allowing all recreational cannabis businesses to immediately reclassify themselves as medical businesses should the federal government take any action against recreational cannabis as recreational cannabis is not currently protected by the Rohrabacher-Farr Amendment. This plan was conceived solely in an attempt to protect recreational cannabis businesses should the federal government begin seizing recreational cannabis. If the Rohrabacher-Farr Amendment does indeed lapse plans such as this would be rendered moot.

The cannabis industry has provided significant societal improvement in a variety of areas, including job creation, tourism facilitation, and tax revenue generation for the states where it has been legalized. While issues of interstate transportation have been raised by states where cannabis is not legalized in any form, Colorado and other states have taken significant action to educate the public on the laws and to remind travelers of the rules regarding the use and transportation of cannabis. Recently, Colorado became the first state to have its cannabis industry surpass $1 billion in annual sales. It was rewarded for its progressive stance with a payday of nearly $200 million in tax revenue. In 2016, states with legalized cannabis received tax revenue in the amount of $559 million solely from cannabis, more than three times the revenue for alcohol sales, according to an April 2017 Forbes article, which referenced a report by New Frontier Data.

Despite studies showing the efficacy of cannabis for many medical issues, the Trump Administration seems hellbent on shuttering the burgeoning industry despite public opinion to the contrary. With more than half of US states currently allowing the use of medical cannabis, and the rapid expansion of recreational cannabis, it seems a fool’s errand to attempt to block such a sustainable, non-outsourceable, and profitable industry. When President Trump was running for the office, he indicated that he was pro-business and that he wanted to see job growth and revenue growth – despite the fact that Sessions’ vehement anti-cannabis stance seems to show no signs of changing course, it could be argued that any moves by the administration to block the green industry are anti-business, anti-growth, anti-patriotic, un-American, and are not at all in the best interests of the country itself, the patients whose lives have been made easier and less painful by their ability to access cannabis as medicine, and in the best interests of the communities who are receiving significant increases in tax revenue as a result of these new and growing industries.

What can you do about this? The only way forward is to be incredibly vocal. Your representatives and senators need to know where you stand. Hopefully they understand that this is not a productive development for all the reasons stated above, and can act to preserve the protections provided for in the guidance issued under the Cole Memo and other memos. The first step must be to ensure that Rohrabacher-Farr remains in place. Contact your senator and representatives today to let them know how much it means to you to preserve Rohrabacher-Farr and its protections for medical marijuana. Tell them to add protection for recreational marijuana as well.

Find your representatives here. A sample script for the contact is below:

“Hi, my name is _________ . I’m a constituent who lives in _________. I’m calling because I believe marijuana should be legal and safely accessible. Will Representative _________ make sure the Rohrabacher-Blumenauer amendment protecting state-legal medical marijuana is in the upcoming budget bill?”

If yes: “Thank you! Please tell the Representative that I stand with them and encourage them to make marijuana federally legal.”

If no: “Seven of ten voters believe the federal government should let states manage marijuana without interference, The Rohrabacher-Blumenauer amendment provides critical protection to state-legal medical marijuana and the critically ill patients who rely on it. I urge the Representative to support the will of the voters and vote for the Rohrabacher-Blumenauer amendment. Senator/Congressperson __________ needs to be on the right side of history on this issue.”

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