By: Mike Vitiello

What Rescinding the Cole Memo Means

All use, possession, or sale of marijuana violates federal law. So, why did states like Colorado, Washington, and now California believe that they could legalize marijuana for recreational use?

In 2013, after Colorado and Washington legalized recreational marijuana, James Cole, an attorney in the United States Department of Justice, issued a memo stating the federal government’s policy concerning states’ efforts to legalize recreational marijuana. That position was that as long as states followed certain guidelines, like keeping marijuana out of the hands of minors and keeping drug cartels out of the business, the federal government would let states regulate as they saw fit. That memo, known as the Cole Memo, along with a similar memo in 2009 relating to medical marijuana, encouraged investors, who are now pumping billions of dollars into marijuana businesses.

In 2016, candidate Trump seemed to take a similar position, allowing states to regulate as they see fit. But, he chose Jeff Sessions as his Attorney General, and Sessions has a long history of opposing marijuana. After a year of the Department of Justice sending uncertain signals about the federal government’s position on state regulation of marijuana, the Attorney General announced that he is rescinding the Cole Memo. What does this mean?

It means that US Attorneys can resume enforcing federal marijuana laws in states with legalized recreational marijuana. The Department of Justice has significant tools to use if it chooses to use them, including criminal prosecutions that could lead to long prison terms, and forfeiture that would allow the government to seize assets of marijuana industry members. That said, the Department of Justice has other more important priorities, including immigration and the opioid epidemic.

Further, Attorney General Sessions’ actions may actually help supporters of legalizing marijuana. Democratic members of Congress, especially those from states that have legalized recreational marijuana, oppose Sessions’ action. But a number of Republicans have seemingly been galvanized by this as well, including Iowa Congressman Rod Blum and Colorado Senator Cory Gardner. In what I think is a sea change, we’re seeing many members of Congress speak out in favor of the Cole Memo, when until now, no member of Congress had done so.

My own prediction is that the industry is already too big to fail, and investors have political clout. Their money, and the money in the industry isn’t red money or blue money, it’s green money, and as we all know, money talks.

If you’d like to learn more about the marijuana industry in California, and particularly, if you are interested in joining the cannabis industry in California, I recommend that you attend the McGeorge Capital Center for Law & Policy’s upcoming Executive Training on The Essentials for Cannabis Businesses, which I will be presenting at. You can purchase tickets here.