After months of “will he or won’t he” speculation, on January 4, 2018 U.S. Attorney General Jeffrey B. Sessions issued a memorandum addressed to all U.S. Attorneys declaring “unnecessary” and rescinding, “effective immediately,” “previous nationwide guidance specific to marijuana enforcement.” In particular, the U.S. Department of Justice (“DOJ”) has rescinded the guidance set forth in the Ogden-Cole Memos (defined and further discussed below) that had directed federal prosecutors to focus their attention on certain specific priorities – such as distribution to children – when enforcing the federal Controlled Substances Act (“CSA”) prohibitions relating to marijuana. The Ogden-Cole Memos had allowed those in the medical and adult-use recreational cannabis industries to operate more freely without fear of federal prosecution.
While the full impact of the DOJ’s action is not yet known, one thing is for sure: It will be broadly felt, bringing again to the forefront the tension between federal drug law and state marijuana law. The change in federal enforcement policy will likely lead to increased uncertainty about doing business in or with the marijuana industry, and has the potential to impact not just state marijuana laws, but also banking law, regulations, and practices; insurance coverage law and policy interpretation; landlord-tenant law; contract law generally; and employment law and practices.
On January 4, 2018, United States Attorney General Jeff Sessions announced that the DOJ has officially rescinded Obama-era policies preventing the enforcement of the Controlled Substances Act (“CSA”) as applied to state-legal cannabis companies operating within certain parameters set forth in the Ogden-Cole Memos. Under the new DOJ approach, U.S. Attorneys will have the discretion to enforce the CSA in regard to state-legal cannabis, including with respect to companies that were in full compliance with the Ogden-Cole Memos. The DOJ’s memo (available at the link below) provides that:
In deciding which marijuana activities to prosecute … prosecutors should follow the well-established principles that govern all federal prosecutions. Attorney General Benjamin Civiletti originally set forth these principles in 1980, and they have been refined over time, as reflected in chapter 9-27.000 of the U.S. Attorney’s Manual. These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.