On January 4, 2018, Attorney General Jeff Sessions — who has long expressed the opinion that marijuana use is dangerous and that federal authorities must more stringently enforce existing prohibitions — rescinded the Cole Memos, one of a few measures designed to prevent federal overreach in marijuana enforcement. Those involved in the commercial cannabis industry (retailers, distributors, testing laboratories, manufacturers, cultivators, and cannabis users, among others) are increasingly concerned about the potential for federal authorities to interfere with the rights granted to them pursuant to state regulation.

Though Attorney General Sessions may be taking aggressive actions to signal an end to the former “hands-off” approach of the federal government with regard to state marijuana regulations, the consequences are more nuanced than some have been led to believe.

Cole Memos

The Cole Memos were a series of Department of Justice guidelines in which the former Attorney General (Jim Cole) clarified that — despite the fact that marijuana was still illegal on a federal level — federal prosecutors were encouraged to shift their financial and human resources to other issues. Rescinding the Cole Memos has had something of the opposite effect of what was intended. Several governors, state senators, and pro-cannabis interest groups have rallied against the perceived threat to state regulatory autonomy and there has been a groundswell of support for further expansion of alternative policies against federal interference at the state level, such as the Rohrabacher-Blumenauer Amendment.

The Rohrabacher-Blumenauer Amendment

The Rohrabacher-Blumenauer Amendment prohibits the Department of Justice from spending funds on the prosecution of medical marijuana businesses and users who are fully operating within the regulatory framework of their applicable state law. Though the Rohrabacher-Blumenauer Amendment was in jeopardy of being modified, Congress chose to extend it, thus softening the impact of Attorney General Sessions’ choice to rescind the Cole Memos. In fact, the continued application of the Rohrabacher-Blumenauer Amendment all but ensures that federal prosecutors will not go after those who are legally involved in the medical marijuana industry.

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Those involved in the commercial cannabis industry at the retail level — whether operating medical marijuana dispensaries, or recreational marijuana dispensaries, or both — may find themselves feeling overwhelmed and somewhat confused by the incessant tug-of-war between Trump-era federal policy and progress on the state level. Optimistic observers of the commercial cannabis industry believe that the end of marijuana prohibition is near. Though change has been slow in the past, marijuana legalization efforts appear to be accelerating in recent years.

Still, Attorney General Jeff Sessions (and others) seem adamant about bearing down on the progress being made by states that have enacted practical, extensive, and pro-business marijuana regulation, such as California.