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What We Know Since The Rescinding Of The Cole Memo


We’ve all heard of the “Cole Memo.” In brief, the Cole Memo was a document originally drafted by former US Attorney General James M. Cole in 2013. Cole issued a memorandum to all US attorneys that was published through the Department of Justice on August 29, 2013. The memo outlines specific priorities related to state-legal cannabis operations that prosecutors and law enforcement should focus on.

Shockingly, in what seems to be a blow to Attorney General Jeff Sessions, The Vermont House passed a bill January 4th—shortly after Jeff Sessions rescinded the policy on marijuana—that legalizes recreational use and possession of marijuana. The State Senate still needs to approve the measure, which would allow adults over the age of 21 to legally grow and possess lesser amounts of marijuana beginning in July.

Following Jeff Sessions’ decision last week to grant federal prosecutors broader discretion to enforce the longstanding prohibition on cannabis, US Attorney General for Massachusetts Andrew E. Lelling released a statement seemingly aggressive shortly after he was called on to clarify his intentions under the new policy. Lelling stated that “this is a straightforward rule of law issue,” and “Congress has unambiguously made it a federal crime to cultivate, distribute, and/or possess marijuana. As a law enforcement officer in the executive branch, it is my sworn responsibility to enforce that law.” However, others in the marijuana industry downplayed Lelling’s comments, saying cannabis has always been illegal at the federal level and that investors in the space are comfortable with the risk. Beth Waterfall, a marijuana activist and founder of a nonprofit cannabis networking group, feels that the cannabis industry is too strong to be maintained now. We’re already seeing opposition from all sides of the political spectrum, which is only galvanizing support for change to marijuana’s federal legal status.” It’s possible that the mere prospect of renewed federal enforcement against marijuana operations would discourage investment in the space, but activists continue to remain hopeful and optimistic that these initiatives will not hinder their progress and instead create more reason to prove the benefit that this industry holds in the economy.

Other influential figures in this industry call the decision to rescind an Obama-era policy that helps pave the way for legalized as “disruptive” and “regrettable.” Sen. Lisa Murkowski, an Alaska Republican, says over the past year that she repeatedly discouraged Sessions from changing the policy and asked him to work with states and Congress instead if he thought changes were needed. Republican U.S. Rep. Don Young of Alaska says the federal government is overstepping its bounds. He says that if this stands and Congress allows the department to crack down on individuals and states, it will be one of the biggest derelictions of duty he has witnessed. The decision made by the U.S. Department of Justice to change its policy on marijuana enforcement has caused the chairman of Alaska’s Marijuana Control Board to resign. Alaska Gov. Bill Walker says he’s committed to upholding the will of Alaska voters, who legalized recreational pot use in 2014.

The decision to rescind this policy caused a roller coaster of emotions for the California cannabis industry. After the excitement of recreational cannabis becoming legal Jan. 1, on Jan. 4th, U.S. Attorney General Jeff Sessions threw the industry into turmoil by announcing the Department of Justice would no longer follow the Cole Memo. However, the consensus among entrepreneurs in California has been that Sessions’ action was more so a directed scare tactic rather than a genuine threat. Kellsi Booth, an attorney who represents large-scale growers in LA and Nevada, reassures that “if any enforcement action is going to be taken, it’ll be against people in the black market or major players who probably have done something they shouldn’t have done, or who are seen as causing harm or danger to the health and safety of the public.”

On a lighter note, the rapid expansion of the cannabis industry is having positive impacts on a global and international scale. On Jan. 4th, the same day Sessions made his announcement, Australian government announced that it would allow medicinal cannabis exports. The move is an effort to boost opportunities for domestic manufacturers, and hopes to provide Australian doctors with high-quality products to prescribe to their patients. The ability to sell in overseas markets—including Germany, Holland, and Spain—will help Australia’s formative industry. US-based Grand View Research estimates the global market for medicinal cannabis will surpass $55 billion by 2025. Although the proposal needs the federal parliament to approve it upon returning to session next month, the main opposition Labor Party has already signaled its support. Jonathan Sherman, a marijuana securities lawyer at Cassels Brock, a Canadian law firm specializing in cannabis legalization noted that “the Australian government’s decision to allow medical cannabis exports supports the development of the cannabis industry internationally,”

Finally, from a local perspective, our state governor and attorney general, as well as Seattle’s mayor, all spoke out against Sessions’ actions. Jay Inslee called the revocation of the Cole Memo “the wrong direction for our state.” He wrote in a statement, “In Washington state we have put in place a system in place that adheres to what we pledged to the people of Washington and the federal government.” He feels that the system is “well regulated, keeps criminal elements out, keeps pot out of the hands of kids and tracks it all carefully enough to clamp down on cross-border leakage.” To sum, we can see how the effort to rescind the Obama-era policy caused some initial hysteria, but ultimately resolved in calmness and security. Cannabis entrepreneurs and supporters are not intimidated by the new decisions of the attorney general. At most, the administration has created a speed bump. The industry is too big to stop, and now that the ball has been rolling, it’s going to continue no matter what. The majority opinion seemed to be that the marijuana industry should conduct “business as usual.” Have you ever tried putting toothpaste back in a tube?