On January 4, 2018, U.S. Attorney General (AG) Jeff Sessions rescinded the “Cole Memo”, which provided guidance to all U.S. Attorneys regarding marijuana enforcement under the Controlled Substances Act (C.S.A.). Marijuana, a Schedule I controlled substance, remains federally illegal under the C.S.A. The Cole Memo was non-binding policy that directed federal prosecutors to generally refrain from prosecuting marijuana businesses that are complying with state law and 8 specific enforcement priorities, such as preventing the sale to minors and preventing association with other illegal activity. According to AG Sessions, U.S. Attorneys should now follow established principles that govern all federal prosecutions when deciding which marijuana activities to prosecute. Thus, the AG’s new policy leaves prosecutorial discretion with each U.S. Attorney’s office. Some U.S. Attorney offices have already announced their enforcement policies regarding marijuana prosecutions within their jurisdictions.
A Federal Protection Remains Effective for Participants of Florida’s Medical Marijuana Program
There remains a federal protection for individuals and businesses operating within states that have legalized medical marijuana, such as Florida. In December 2014, Congress enacted the Rohrabacher-Farr Amendment (the “Rohrabacher Amendment”) as part of an omnibus appropriations bill. The Amendment prohibits the U.S. Department of Justice from using funds to prevent specific states, including Florida, from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana. It has been successfully used to prohibit the federal prosecution of defendants for violating the C.S.A. in the context of medical marijuana. See e.g., U.S. v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). The Rohrabacher Amendment has most recently been extended through February 8, 2018, as part of a temporary spending bill. It is yet to be determined whether the Rohrabacher Amendment will be included in a final spending bill.
The Impact on Florida’s Medical Marijuana Program
The AG’s decision to rescind the Cole Memo undoubtedly creates more uncertainty in an already uncertain industry. The U.S. Attorney offices in Florida have not announced any formal enforcement policies regarding the State’s medical marijuana program. And while the Rohrabacher Amendment remains in effect, it is unlikely that any Federal action will be initiated in Florida against individuals or entities that are complying with the State’s medical marijuana laws. Despite the uncertainty at the Federal level, Florida’s medical marijuana program continues to move forward. The State’s program has experienced rapid patient growth, which has not slowed following the rescission of the Cole Memo. However, the cloud of uncertainty will likely prevent the State’s program from reaching its full potential. Indeed, certain individuals and companies crucial to the program’s success — such as patients, physicians, investors, financial institutions, and other ancillary businesses that could provide products and services to Florida’s medical marijuana industry — will continue to watch from the sidelines until more certainty is provided by the Federal Government.