Cannabusiness Advisory

Assessing the Sessions Memo’s Impact on Legalized Marijuana

January 10, 2018


As most are by now likely aware, last Thursday, Attorney General Jeff Sessions issued a memorandum to all U.S. Attorneys entitled “Marijuana Enforcement,” which noted that decisions to prosecute even legal marijuana have been, and shall continue to be, guided by prosecutorial discretion, in light of the government’s “finite resources.” It went on to state that previous guidance with respect to marijuana enforcement, including the Cole Memorandum, was “unnecessary” and, therefore, rescinded.

The Massachusetts U.S. Attorney, Andrew Lelling, who was confirmed just last month (December 2017), said the following soon after the release of Attorney General Sessions’ memo:

This office will pursue federal marijuana crimes as part of its overall approach to reducing violent crime, stemming the tide of the drug crisis, and dismantling criminal gangs and in particular the threat posed by bulk trafficking of marijuana, which has had a devastating impact on local communities … As with all of our decisions, we will continue to use our prosecutorial discretion and work with our law enforcement partners to determine resource availability, weigh the seriousness of the crime and determine the impact on the community.

In a further statement, he went on to say:

I cannot … provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution … This is a straightforward rule of law issue. 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, guided by the Principles of Federal Prosecution. To do that, however, I must proceed on a case-by-case basis, assessing each matter according to those principles and deciding whether to use limited federal resources to pursue it.

Although immediate media coverage sought to portray Thursday’s move as a “bombshell” or major shift in direction, most industry experts, politicians, and commentators have more or less concluded that it will likely do very little to hinder industry progress in the long run—though the new change may make it a bit more difficult to raise investment capital in the short term.

We generally agree with the collective wisdom, and reminder readers that, as a result of the Rohrabacher-Blumenauer amendment, the federal government presently remains limited in its ability to use federal funds to prosecute compliant, licensed medical marijuana facilities. (The federal government has always been able to prosecute and pursue even properly licensed, fully compliant recreational or adult-use cannabis facilities, subject to the discretion of a state’s U.S. Attorneys.) The Massachusetts recreational market does not come online until July 1st, so as long as the Rohrabacher-Blumenauer amendment remains in effect, actual prosecution in the state is several months away, if at all.

As a result of Sessions’ memo, there have been bipartisan calls for the amendment to be expanded to include adult-use marijuana facilities, as well as to deschedule marijuana entirely and remove it from the Controlled Substances Act. Ultimately, individual U.S. Attorneys – not Washington, D.C. – decide whether to utilize their limited resources to pursue state-licensed businesses.

In the Commonwealth, a number of elected officials and political organizations have come out in opposition of the Attorney General’s perceived “war on cannabis,” including:

  • Governor Charlie Baker: “The administration believes this is the wrong decision and will review any potential impacts from any policy changes by the local U.S. Attorney’s Office.”
  • Massachusetts Attorney General Maura Healey: “Today’s announcement from Washington inexplicably directs federal law enforcement resources away from combating an opioid epidemic that is ravaging our communities in order to focus on legalized marijuana … My office is committed to assisting the [Cannabis Control] Commission, local municipalities and our partners in law enforcement to implement the will of the voters effectively.”
  • Massachusetts Cannabis Control Commission: “The role of the Cannabis Control Commission remains the same – to fulfill the will of the voters of Massachusetts by implementing and administering a regulatory process that is safe, equitable and efficient … As far as the mandate and the work of the Cannabis Control Commission is concerned, nothing has changed. We will continue to move forward with our process to establish and implement sensible regulations for this emerging industry in Massachusetts.”

Similar statements were issued by other governmental officials across the nation, on both sides of the political spectrum. Ironically, much of the strongest criticism came from members of Sessions’ own party, including Republican representative Dana Rohrabacher, who, in the past, has called Sessions a “longtime friend.”

We are confident that the attorney general’s memo does not mean the end of cannabis businesses in Massachusetts, although increased prosecutorial resources will be dedicated to, and scrutiny focused on, persons and entities operating in so-called “grey” markets. Further, Sessions’ actions may indeed backfire, given the increased bipartisan calls to expand Rohrabacher-Blumenauer to include adult-use cannabis facilities, thereby offering greater protections to the industry.

An interesting time, for sure.

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