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John W. Fraser
John W. Fraser
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AG Sessions Rescinds Federal Marijuana Guidance, But There’s No Need to Panic (Yet)

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On January 4, 2018, United States Attorney General Jefferson Beauregard Sessions III issued a memorandum that rescinded previous guidance on federal enforcement of marijuana laws in states that had legalized some form of medical marijuana use. The prior federal guidance, commonly known as the “Cole Memo” that indicated that the Department of Justice would focus its enforcement efforts on matters such as preventing distribution of marijuana to minors, preventing violence and the use of firearms in the cultivation and distribution of marijuana, and preventing diversion of marijuana.

Attorney General Sessions’s decision to rescind the Cole Memo has caused significant concern among those in the marijuana industry, and those who seek to obtain licenses to operate commercial medical marijuana business in Michigan. This concern is amplified by Mr. Sessions’s well-known anti-marijuana views. He suggested in March 2017 that marijuana was “only slightly less awful” than heroin and disputed the scientific evidence that marijuana has beneficial medical benefits particularly for those struggling with opioid addiction. Mr. Sessions’s memorandum leaves the decision as to whether to federally prosecute those who are engaged state-legal marijuana activity in the hands of the various U.S. Attorneys around the country.

While Mr. Sessions’s decision is a cause for concern, there is good news for medical marijuana patients, caregivers, and entrepreneurs who are following their state’s laws. Since December 2014, Congress has prohibited the Department of Justice from spending money to prevent states from implementing laws that authorize the use, distribution, possession, or cultivation of medical marijuana. This amendment is currently known as the Rohrabacher-Blumenauer Amendment (previously the Rohrabacher-Farr Amendment).

Effectively, Congress has refused to appropriate any money to the Department of Justice that would be used to prosecute folks who are engaged in medical marijuana activity that is legal in their respective state. In practice, the Rohrabacher-Blumenauer Amendment allows a person charged with a federal marijuana-related crime to file a motion to halt the federal prosecution so long as the person proves that their conduct was legal under state law. The United States Court of Appeals for the Ninth Circuit has upheld these decisions to stop federal prosecution on appeal.

In sum, while Mr. Sessions’s decision is a cause for concern, Congress has continued to extend the Rohrabacher-Blumenauer protections since they were first implemented in December 2014. It is critically important that the Rohrabacher-Blumenauer protections be continued in each appropriations bill. As of January 12, 2018, the Rohrabacher-Blumenauer protections are set to expire on January 19, 2018, which is when the current appropriations bill expires. Congress is expected to pass another appropriations bill soon to avoid a federal government shutdown.

If you are a medical marijuana patient, caregiver, or interested entrepreneur, contact your Congressional Representative and Senators today and tell them to continue the Rohrabacher-Blumenauer protections in all future appropriations bills. If you do not know who your Representative is, you can look them up and obtain their contact information here.

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  1. Tim McNamara says:
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    I understand MI is going through some growing pains of its own in this industry. Overall, whether it takes a new administration, an act of Congress, or some direction from above Mr. Sessions, the market and its regulators seems poised to grow exponentially. For a well-informed model I would (selfishly) recommend checking out our regs in MA, which has developed a very robust licensing scheme: http://www.cape-law.com/2018/adult-use-massachusetts-recreational-marijuana-business-startup-licenses/