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The President May Support Future Federal Legislation to Protect the State-Sanctioned Cannabis Industry

Publisher: Day Pitney Alert
April 17, 2018
Day Pitney Author(s) James P. Carlon

Last week, Sen. Cory Gardner (R-Colo.) announced that President Donald Trump had assured him in a recent phone call that the cannabis industry in Colorado would not be targeted by the Department of Justice despite Attorney General Sessions’ decision in January to rescind the Cole Memorandum.[1] He further asserted that the President supports so-called federalism-based legislative solutions to reconcile the divide between the federal law (which declares cannabis an illegal drug) and various states that have legalized cannabis for medicinal and/or recreational purposes.[2] White House legislative affairs director Marc Short confirmed the President’s position on Friday, stating that the President respects the rights of Colorado citizens to “decide the issue for themselves.”[3]

The President’s decision ends a legislative blockade imposed by Gardner which has prevented the confirmation of 20 nominees to fill various positions within the Department of Justice. Gardner’s actions were in direct response to the attorney general’s decision to rescind the Cole Memorandum, which potentially threatened the legal cannabis industry in Colorado by putting thousands of Coloradans at risk of federal prosecution.

While this development, together with the recent extension of the Rohrabacher-Blumenauer Amendment[4] this past March as part of the omnibus federal spending bill, appears to paint a positive picture for the future of the cannabis industry in the United States, clients should note the following:

a. Cannabis remains a Schedule 1 controlled substance under the Controlled Substances Act.[5] Accordingly, the cultivation, sale and distribution of marijuana and its extracts remain a crime under federal law.

b. The President’s statements supporting states’ rights to regulate marijuana are not binding on U.S. attorneys charged with the enforcement of federal narcotics laws.

c. To date, no bill to legalize marijuana on the federal level or to otherwise protect specific industries looking to provide services to the cannabis industry (i.e., banking) has successfully made it to a vote of the full Congress.

d. 2018 is an election year in Congress, and it is unclear whether legislation to provide what is tantamount to universal federal legalization could pass during this term.

Clients are urged to exercise caution when considering any involvement in the cannabis industry. If you have any questions about the state of the law in this area or about the potential risk of operating in this space, please contact a member of the Regulated Substances practice group.

[1] The Cole Memorandum was a 2013 U.S. Department of Justice memorandum drafted by United States Deputy Attorney General James Cole which described a set of prosecutorial priorities in states that had legalized marijuana for medicinal purposes. Essentially, the guidance directed U.S. attorneys to avoid focusing federal prosecutorial resources on individuals whose actions were in clear and unambiguous compliance with state laws governing medical cannabis.
[3] See id.
[4] The Rohrabacher-Blumenauer Amendment is an appropriations rider passed as part of the March 2018 omnibus spending bill, which (1) prohibits the Justice Department from using federal funds to prevent states from implementing medical marijuana laws and (2) prevents the Justice Department from using federal funds to prosecute individuals who are engaged in conduct that is permitted by, and in compliance with, state medical marijuana laws.
[5] 21 U.S.C. ch. 13 §801, et seq.

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