The decision by Attorney General Jeff Sessions to rescind the Cole memo has caused some confusion with Michigan cannabis business owners and consumers. But what is the Cole memo, and should the community be concerned?
What is the Cole Memo?
After voters in Colorado and Washington legalized cannabis for recreational use in 2012, the states were at odds with long-standing federal law prohibiting it. In 2013, US Attorney General James M. Cole issued a memorandum indicating that prosecutors and law enforcement should focus on the following when dealing with state-legal cannabis operations:
• Prevent the distribution of marijuana to minors
• Prevent revenue of marijuana sales from going to criminal enterprises
• Prevent the traffic of marijuana from states where it is legal to other states
• Prevent state-authorized marijuana activity from being used as a pretext for other illegal drug trafficking or activity
• Prevent violence and firearm use in the cultivation and distribution of marijuana
• Prevent drugged driving and other adverse public health consequences associated with marijuana use
• Prevent the growing of marijuana on public lands and prevent any public safety or environmental dangers posed by marijuana production on public lands
• Prevent marijuana possession or use on federal property
The memo was to serve as a guide directing US attorneys not to focus federal resources on individuals in clear compliance with existing state laws. It represented a shift in prioritization of the federal government; after it’s issue, most federal prosecutions ceased unless they met the listed criteria.
What Losing the Cole Memo Means For Michigan Marijuana Businesses
Right now, it doesn’t mean much, marijuana dispensaries are still open and state laws haven’t changed. The Cole memo was not a law, just a memo. Federal authorities can still crack down on cannabis same as they could before. The only thing the Cole memo did was provide guidance and give clarity as to what the government was looking for.
But businesses and consumers shouldn’t take the repeal lightly. Without the memo, US attorneys get to decide what kinds of federal resources to devote to marijuana enforcement as they see fit. While it’s business as usual for now, it’s important for business owners to get to know the attorney in their jurisdiction. Finding out their prosecutorial record and if they are drug-focused should be a priority. A zealous prosecutor could go for company executives, employees, and investors, while others may not care at all or be unwilling to do anything politically volatile. While operators in the 9th Circuit Court of Appeals (CA, OR, WA, MT, ID, NV, AZ, HI, and AK) have decent protection under a law that prevents the federal government from spending money to interfere with state-legal medical marijuana businesses, those in other circuits should be pay close attention to regulations.
With the loss of the Cole memo, the risk involved in opening a new cannabis business or obtaining a license has increased depending on location. Since independent prosecutors are completely in charge, it is important to find out what they care about when mitigating risks. Where consumers are concerned, while legally possible, it’s highly unlikely for a US attorney to prioritize prosecution in marijuana-legal states based on recent history.
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