Medical Marijuana Alert: Attorney General Jeff Sessions to Rescind Cole Memorandum

The Associated Press is reporting that Attorney General Jeff Sessions is rescinding federal marijuana prosecution guidance that has been in place since 2013.  This move could have significant implications on medical marijuana activities in Louisiana. 

The old guidance was provided by a Justice Department Memorandum issued on August 29, 2013 known as the Cole Memorandum.  Memorandum from James M. Cole, Deputy Att’y Gen. (Aug. 29, 2013).

The Cole Memorandum gave departmental guidance to federal prosecutors concerning marijuana enforcement under the Controlled Substances Act.  Specifically, the Justice Department set forth the following enforcement priorities:

  1. Preventing the distribution of marijuana to minors;
  2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  3. Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or illegal activity;
  5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  7. Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  8. Preventing marijuana possession or use on federal property.

Outside of these priorities, the Cole Memorandum explains, “the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.”  (Cole Mem. at 2.) 

Marijuana programs across the country have relied upon these guidelines in structuring their activities, and, for example, some 46 states now sanction medical marijuana in some form.  These activities are now in a state of uncertainty.  Sessions apparently prefers to let individual federal prosecutors determine enforcement priorities in their districts.  Because federal enforcement priorities were contained in a Justice Department Memorandum, a risk has always existed that the guidance many have relied upon for years could change overnight.  It appears that day may have finally come.

If Sessions does, in fact, rescind the Cole Memorandum, those States that have legalized medical marijuana, and those industries and entities operating in accordance with those State regulatory systems, will no longer be able to rely on one set of enforcement priorities but must instead review individual policies that may evolve across the country to make sure their activities do not result in federal prosecution.  The issue appears ripe for congressional action.  However, unless and until Congress intervenes, rescission of the Cole Memorandum will create greater ambiguities in how states can lawfully proceed in the marijuana industry.  We will continue to monitor developments and assess how individuals and entities might continue to operate in this area.

If you have any questions regarding Louisiana's medical marijuana program, please do not hesitate to contact our firm.

          Author:  W. Scott Keaty, Keith J. Fernandez, and Joshua G. McDiarmid
          Practice Area:  Medical Marijuana Law
          Date:  January 4, 2018

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