Statement on AG Sessions and the Cole Memo

In early January, Attorney General Jeff Sessions announced the revocation of the Cole memo. As attorneys that serve businesses in the cannabis industry, we strongly condemn this development while recognizing that this does not constitute a change in law.

It is important to note that the legal medical cannabis markets are still protected under the Rohrabacher-Blumenauer amendment (on December 22, 2017 the amendment was extended until January 19, 2018). We urge all of our members to contact their congressional representatives to encourage the extension of the amendment at the next vote and to extend the amendment’s reach to state-legal adult-use cannabis. 

The Cole Memo directed US Attorneys to use discretion to prioritize certain types of violations in prosecuting cannabis operators, but, strictly speaking, it did not make operations in cannabis legal. US Attorneys retain broad prosecutorial discretion, and it is yet to be seen whether and to what extent action will be taken against the cannabis industry. Given the finite prosecutorial resources available to US Attorneys and the many real issues facing our country, we hope that regulated activity that is legal under state law will not distract prosecutors from the issues that are most important to our communities (64% of Americans in a recent Gallup Poll have stated they believe adult-use cannabis should be legal, with numbers likely much higher in locations where adult-use currently exists).

The Colorado US Attorney issued a statement that reflects how we believe US Attorneys should interpret the development: 

Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions.  The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions -- focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state.  We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”

We applaud the US Attorney for Colorado in responding so quickly to this announcement and for reaffirming a commitment to prioritizing violent and other serious federal crimes. As attorneys, we understand and agree with this position.

That being said, we must prepare ourselves and our clients for a shift in priorities from the federal government. We will be hosting an emergency webinar addressing potential problems raised by the DOJ’s new guidance – please check back for more information.

Pushing cannabis market participants into a lawful, regulated, and transparent industry is beneficial for consumers, producers, and society alike. We will continue to offer our support to our members and members of the legal community to achieve the important goal of a functional cannabis market through legal education and robust legal services.