United States Attorney General Jeff Sessions issued a memo rescinding the Cole Memorandum and other federal pot protections dating back to 2009 on January 4. Colorado's elected officials — from Governor John Hickenlooper to Mayor Michael Hancock to the entire congressional delegation — were quick to condemn the move and vow to fight any attempt to prosecute law-abiding businesses in this state. But in the meantime, how does the Sessions memo affect you?
By rescinding the pot protections, Sessions and the United States Department of Justice authorized U.S. Attorneys to use federal resources to persecute marijuana cultivation, distribution and possession no matter if the activities are compliant with state laws. However, the memo also mentions the DOJ's "finite resources," and asks federal prosecutors to "weigh all relevant considerations" concerning the seriousness of the crimes before prosecuting.
That leaves some ambiguity as to what happens next, particularly in states that have legalized recreational marijuana, such as Colorado.
Robert Troyer, the U.S. Attorney for the District of Colorado and the man who decides how to enforce federal cannabis laws here, issued a statement shortly after Sessions issued his memo, saying that his office had already been operating under the principles Sessions outlined, and would continue focusing on the "greatest safety threats to our communities around the state." On January 4, Colorado Attorney General Cynthia Coffman made similar remarks at a press conference.
In a statement sent to Westword, Troyer explained how he decides what constitutes the greatest marijuana safety threats:
Marijuana Deals Near You
Here is the question we ask every time we consider allocating our finite resources to prosecute any of the vast number of federal crimes we can prosecute, from violent crime to immigration crime to opioid crime: will this prosecution make Colorado safer? Under the Attorney General’s new memo, we have more freedom and flexibility to make decisions that make Colorado safer by prosecuting individuals and organizations for marijuana crimes that significantly threaten our community safety. Also, rather than give U.S. Attorneys any specific direction, the memo returns trust and local control to federal prosecutors, and clarifies that they know how to deploy their resources to make their Districts safer.
And on January 5, the Colorado Department of Revenue's Medical Enforcement Division released this bulletin to "Colorado Marijuana Industry Members and Stakeholders":
Retail pot dispensaries might be the symbols of legal marijuana, but they're hardly the only potential targets in Sessions's war on the plant. The legal pot sector extends to home growers, medical patients, industrial hemp operations and the millions of legal consumers in Colorado, Washington, Nevada, Oregon, Alaska and now California.
While you probably don't have to worry about getting swept up in a raid by the Drug Enforcement Administration on your way home from the pot shop, according to state officials and pot attorneys, that doesn't mean you can start cutting corners with your basement grow, business plans and pot purchases. Here's how the Sessions memo affects five areas of Colorado's legal marijuana field.
Nothing about the Sessions memo changed how a dispensary operates, and it didn't force any state-legalized marijuana industries to shut down. Purchasing and possessing pot products is still legal in Colorado and other states that have regulated it. While Sessions technically gave federal prosecutors the right to go after anyone buying pot, marijuana attorney Brian Vicente doubts any government agencies would use self-admitted "finite resources" to bring charges against an average dispensary customer, especially one following Colorado state laws.
The Sessions memo includes the word "cultivation," which technically puts the plants in your basement in the same boat as LivWell's 100,000-plus-square-foot warehouse. Colorado has a new statewide plant-count limit (the cap of twelve applies to everyone including medical patients, unless they receive a plant-count extension from the state), but it falls to local and state law enforcement officials to enforce that.
As with purchasing and possessing, the federal government could come after you even if you follow Colorado growing rules to the letter of the law — but also as with purchasing and possession, that would be viewed as a waste of resources. Federal prosecutors likely won't come after you for a cultivation unless you're growing and distributing marijuana on a large scale...and If you're growing on a scale that the DOJ would investigate, you're probably not going to listen to Sessions either way. But if you're flying under the radar with a small-but-illegal operation, why risk it?
Owning a Marijuana Business
In the wake of the Sessions memo, most of the media attention has focused on owners and players in the marijuana business, and for good reason: They actually have something to worry about. While Vicente isn't telling any of his clients to head for the hills, he is telling them to be extra careful. "You need to double down on compliance, be a good neighbor, pay your taxes, and that should keep you out of the crosshairs with the federal government," he says.
Based on his experiences with Troyer, however, he adds that Colorado business owners should feel relatively safe if they're following the rules, at least compared to businesses in northern California and eastern Washington. Brian Stretch and Joseph Harrington, the U.S. Attorneys for the respective districts, stated their opposition to legal pot even as the states where they work created the systems for selling retail marijuana.
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Medical Marijuana Patients
Although Sessions's revocation included the Ogden memo, which protected state-compliant medical marijuana patients and caregivers from federal prosecution, it doesn't touch federal acts with measures that protect medical marijuana stakeholders. The Rohrabacher-Farr Amendment currently protects state-compliant medical marijuana patients, caregivers and businesses from federal persecution, but it is only in effect until January 19; after that it will be reconsidered by a House-Senate conference committee.
Even if the Rohrabacher-Farr Amendment, which has been federal law since 2014, isn't extended, the likelihood of federal prosecutors going after compliant cancer patients and their caregivers is very small, according to Vicente.
And what about industrial hemp, the non-psychoactive cousin of cannabis that has seen vast growth in acreage across the country since legalization efforts began to take hold? Those businesses should be safe, according to Front Range Biosciences CEO Jonathan Vaught. Front Range studies the hemp genome, partnering with the University of California, Davis to research selective hemp breeding. Thanks to the Farm Bill, federal legislation passed in 2014 that allowed industrial hemp research and farming programs, hemp farmers should be free of any federal interference, Vaught says, but the Sessions memo could still affect the industry.
"One thing it could eventually do is drive the research and development overseas. You're already seeing countries like Canada, Israel, Australia and countries in South America stepping up to the plate," he says. "It's disappointing, but so much progress has been made that even if the U.S. slows down what it's doing, the international marketplace is going to continue to grow."