Just days after California's legalization of cannabis went into effect, Attorney General Jeff Sessions has announced the repeal of the Cole Memo, a 2013 guidance document from the Department of Justice (DOJ) penned by then-Deputy Attorney General James Cole. This directive limited and refined law enforcement's priorities when it came to policing cannabis in states that had passed some form of legalization, aligning these limitations to President Obama's stated priorities: preventing drug-related violence and gang activity; keeping cannabis out of the hands of minors; and prohibiting cannabis use on Federal grounds and drug-impaired driving.
The cannabis industry has grown rapidly in a short number of years, but has had to do so under a confusing legal regime, with legality varying from state to state with little guidance from the Federal Government which has continued to classify cannabis as a Schedule I narcotic - the most restrictive category. In this opaque legal environment, the Cole Memo was one of the few beacons of federal clarity. In the years since it was issued, the cannabis industry has put its faith in the Memo's limiting principles, growing recreational and medicinal businesses with the understanding that law enforcement would not target their operations. Yesterday's announcement throws the already-volatile cannabis landscape into further confusion.
What does this mean?
While this decision seems timed to do maximum damage to California's infant recreational regime, it should be noted that merely rescinding the Cole Memo does not direct new resources to police and prosecute cannabis growers or users. Rescinding the Cole Memo does not reprioritize law enforcement's many charges or compel any actions, it simply removes the limitations formally paced on federal law enforcement. Police and prosecutors will still be able to decide how to spend their time and money in their respective jurisdictions; they will just have more leeway in those decisions than they have had since 2013.
This likely means that cannabis businesses and users in more conservative districts or states will be in the most danger, and to some degree this has always been the case. As far as we know, the DOJ is not funneling new resources specifically to cannabis control, so in the absence of particularly motivated United States attorneys, there is unlikely to be a widespread crackdown. That said, a few strategically-timed "busts" or arrests could have a very chilling effect, especially in places where legalization is newer, like California.
The cannabis industry has been bracing for this news since Sessions became the Attorney General. While Trump and Sessions had previously given assurances that taking action against cannabis businesses would not be a priority for this administration, Sessions’ objections to marijuana are longstanding and well-documented, and were even brought up in his confirmation hearings. Sessions had also convened a task force to research cannabis policy, though it has yet to make any recommendations. Given his outspoken opposition and the attention he's given to marijuana through this task force, the industry should not be surprised to hear that the Cole Memo has been rescinded
One of the other few federal protections of the cannabis industry, the Rohrabacher-Blumenauer Amendment (previously known as the Rohrabacher-Farr Amendment), remains in place - though its longevity is also uncertain. This amendment was first introduced in 2001 but took until 2014 to finally be attached to a Congressional spending bill to prohibit the use of DOJ funds to police users of medical marijuana. Since then it has been renewed several times, including through the 115th Congress' numerous Continuing Resolutions (CRs). This amendment has proven to provide protection from prosecution for those that comply with the terms of the amendment. Most recently it was attached to the CR passed just before Christmas, which expires on January 19th. Rohrabacher-Blumenauer has survived the irregular appropriating processes of the past few years, but its continued existence depends on being attached to and reapproved in every budget showdown - not an ideal existence for the cannabis industry. Crucially, it also only applies to medicinal marijuana, so recreational providers and users derive no protections whether or not the amendment continues to pass.
A potential upside to the dissolution of the Cole Memo could be newfound Congressional willpower to finally legislate some clarity into the industry. Democrats have traditionally been more supportive of legislative efforts to de- or re-schedule cannabis or cannabidiol, and Republicans have gradually come on board as some redder states legalize (mostly medicinal) marijuana. Sen. Cory Gardner, a Republican, has become one of the biggest proponents since his state, Colorado, became one of the first to allow recreational marijuana use and he saw the increase in tax revenue and small businesses. He reacted strongly to today's news, tweeting that "the action directly contradicts what Attorney General Sessions told me prior to his confirmation" and that the DOJ had "trampled on the will of the voters in CO and other states." He even went so far as to promise to hold up DOJ nominees in the Senate confirmation process until Sessions reverses course. Many Republicans have withheld support of a Federal legislative fix, citing states' rights to make their own laws regarding marijuana. With public support for legalized cannabis at an all-time high, the threat of Sessions' decision to the cannabis industry and those states' rights may be the thing to force Members of Congress to finally act.