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Sessions Memo Resets Federal Marijuana Enforcement Policy

The U. S. Department of Justice (DOJ) issued a memo dated January 4, 2018 regarding federal marijuana enforcement policy, directing all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities.  Attorney General Jeff Sessions’ memorandum rescinds multiple guidance documents issued during the Obama administration, such as the Cole Memo  dated August 29, 2013, and announces a” return to the rule of law.” 

Under the Controlled Substances Act (CSA) passed in 1970, Congress has generally prohibited the cultivation, distribution, and possession of marijuana.  Marijuana remains classified as a Schedule I controlled substance.  Schedule I controlled substances are drugs with no currently accepted medical use and a high potential for abuse.   Other Schedule I drugs include heroin and LSD.

In the memo, Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws and to follow well-established Principles of Prosecution related to marijuana activities.   DOJ’s press release announcing the memo included the following quote from Sessions:

It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission….Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.

It remains to be seen how this action will affect those in states that have legalized marijuana for medical or recreational use.  The Massachusetts Cannabis Control Commission (CCC), which recently promulgated draft regulations to implement the Commonwealth’s recreational marijuana sales, has pledged to continue undeterred by the memo. "The role of the Cannabis Control Commission remains the same -- to fulfill the will of the voters of Massachusetts by implementing and administering a regulatory process that is safe, equitable and efficient," the CCC said in a statement. "Our priority has always been to protect public safety and develop regulations that are compliant with all laws including those passed by the voters and the legislature legalizing the recreational use of marijuana in the Commonwealth."  The CCC will hold public hearings in February 2018 to receive comments on the draft regulations, and will accept written comments through February 15, 2018.  The CCC must issue final regulations by March 15, 2018.

Reaction to the memo has been swift and somewhat predictable. (The DOJ’s twitter account is attracting some interesting tweets, many of which could not be quoted here.) It is unclear whether Congress will take up the issue of marijuana – which remains illegal on the federal level, even as more states legalize it for medicinal or recreational purposes.  Those in the cannabis industry would welcome relief from challenges in areas such as banking, intellectual property protection and interstate transport that they currently face.  In the coming weeks, Mintz Levin and its consulting affiliate, ML Strategies, will monitor the effect of Attorney General Sessions’ memo on the legal and political landscape of this budding industry.

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M. Daria Niewenhous

Member Emerita