Jeff Sessions Rescinds Cole Memorandum

On January 4, 2018, Attorney General Sessions unveiled a new policy that effectively rescinds the Cole Memorandum, which set forth the Obama Administration’s position that the federal government would not generally not enforce cannabis laws in states where it is legal.  This is an about-face from General Sessions’ recent testimony where he suggested he would maintain the Obama Administration’s position.  General Sessions’ new policy comes at a time where support for legalization has never been higher, as a recent Gallup poll suggested 64% of Americans favor legalization.  Unlike the Cole Memorandum, which discouraged enforcement of cannabis laws, Gen. Sessions’ policy allows US Attorneys to exercise their own judgment as to whether to enforce cannabis laws.

Jeff Sessions

Clearly, General Sessions’ announcement has the potential to have a major impact on the legal cannabis industry.  His new policy, though, has already started a political battle.  Cory Gardner, the Republican Senator from Colorado, immediately took to Twitter to oppose General Sessions’ action, arguing that cannabis policy should be a states’ rights issue.  Sen. Gardner stated that he was “prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”  Presumably, the commitment Sen. Gardner spoke of was adherence to the Cole Memorandum.

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Attorney General Sessions and Marijuana Laws

Attorney General Jeff Sessions, the nation’s top law enforcement officer, is an outspoken critic of marijuana.  How Attorney General Sessions approaches marijuana, both medical and recreational, has the power to shape, enhance or destroy the industry.  One of the core issues for legal marijuana businesses is the federal illegality of marijuana: state legalization does not change the Controlled Substances Act, 21 U.S.C. 13, which still classifies marijuana as a Schedule I controlled substance.  The conflict between states where marijuana is legal and the federal laws criminalizing marijuana creates a legitimate federalism concern.

Portrait of Attorney General Jeff Sessions.

Before Attorney General Sessions was appointed, marijuana businesses could rely on some limited federal guidance.   Former Obama Administration Deputy Attorney General James M. Cole issued a memorandum to all U.S. Attorneys on August 29, 2013 (the “Cole Memorandum”) explaining the Department of Justice’s (“DOJ”) position on the limited scenarios where federal law enforcement should enforce federal marijuana laws, which primarily address the availability and/or provision of marijuana to children and the diversion of marijuana across state lines.  Soon thereafter, the Department of the Treasury Financial Crimes Enforcement Network issued a memorandum to financial institutions about their role in marijuana businesses (the “FinCEN Memorandum”) which, for all intents and purposes, adopted the positions taken by the DOJ as set forth the Cole Memorandum.

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