Feuerstein Kulick Responds to DOJ’s Rescission of the Cole Memo

Feuerstein Kulick Responds to DOJ’s Rescission of the Cole Memo

The Department of Justice today issued a memo on federal marijuana enforcement policy announcing the rescission of the Cole Memo which, since 2013, had de-prioritized the enforcement of cannabis prohibition under the Controlled Substances Act in favor of a more hands-off approach. In a vacuum, this permits local US Attorneys to use their prosecutorial discretion in deciding whether to commit their district’s resources towards prosecuting people and business operating in adult-use markets for violating the Controlled Substance Act, regardless of whether or not those persons or entities are conducting themselves in accordance with local and state law. For the time being, however, those operating in accordance with a state’s medical marijuana laws are still shielded from Federal prosecution by the Rohrabacher-Blumenauer amendment.

State governments and federal legislators are quickly voicing their support for legal medical and adult-use cannabis programs across the country, which provide legal access to safe products, increase both jobs and tax revenue and rectify decades of social injustice. We believe that today’s action by AG Sessions may finally prompt Congressional action. This does not mean that Congress is going to necessarily de-schedule marijuana as a controlled substance. There are a number of interim steps that Congress can take instead, including, but not limited to, voting in favor of some amendments already before it that would (i) continue to extend Rohrabacher-Blumenauer to protect the medical marijuana market, (ii) extend Rohrabacher-Blumenauer protections to adult-use markets (the so-called Polis-McClintock amendment), (iii) provide for a reliable safe harbor for banks servicing state legal marijuana businesses, and/or (iv) reform Section 280e of the Federal tax code, which is being applied to the legalized marijuana industry in a Draconian manner.

One thing is certain — a very complex and complicated area of the law just got more complicated. Numerous states depend on (and in some cases have already spent) the tax revenue projected to be generated by their state’s legalized program. Without Congressional action to protect this vibrant, compliant, and tax-paying industry against attacks by the DOJ, a huge fight is brewing between states and the DOJ. The silver lining of AG Sessions’ actions today is that Congress won’t be able to continue to ignore these big issues and hide behind the status quo provided by the Cole Memo. AG Sessions has thrown down a gauntlet, and it is time for Congress to heed the will of the people that it serves and enact legislation and pass amendments that protect and clarify the fastest growing industry in America

We at Feuerstein Kulick will continue to have further discussions with elected officials, advocacy groups and industry leaders to stay on top of the latest news regarding this issue. We continue to believe strongly in the legal cannabis industry. The path towards legalization has always been long and winding, and we fully expect that this day will become a watershed moment on the journey towards the inevitable legalization and legitimization of the legal marijuana industry across the United States.

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