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What Is the Cole Memorandum?

If you’re new to the medical marijuana industry, you may be wondering how federal marijuana laws and the laws in your state intersect. Obviously, marijuana is illegal on a federal level. So, what, if anything, protects you from federal prosecution if you open a dispensary or grow marijuana in a state that has legalized medical marijuana use? The answer lies in the Cole Memorandum, a document authored by former U.S. Deputy Attorney General James M. Cole and published by the Department of Justice on Aug. 29, 2013. The memo provides clear guidance for all U.S. attorneys around the prosecution of marijuana-related offenses in states where medical and/or recreational marijuana is legal. 

Behind the Cole Memorandum 

When marijuana first became legal in Colorado and Washington in 2012, lawmakers in both states reached out to the Justice Department for guidance on how to implement the law. The guidelines that emerged apply to “all federal enforcement activity, including civil enforcement and criminal investigations and prosecutions” in all states.

The Cole Memorandum outlines the priorities of the Justice Department in regard to enforcement of the federal Controlled Substance Act. Under the Act, marijuana is a Schedule 1 drug, which is defined as an illegal substance having “high abuse potential, no medical use, and severe safety concerns.” And the Cole Memorandum does nothing to change that. It still defines marijuana as a “dangerous drug” that provides a “significant revenue source” for gangs, cartels and organized crime. Nevertheless, it establishes enforcement principles that allow for the “effective, consistent and rational” use of limited federal resources in investigating and prosecuting marijuana-related crimes.

What the Cole Memorandum Says

The Cole Memorandum sets priorities for federal marijuana enforcement efforts, which focus on preventing the following:

  • The distribution of marijuana to minors
  • Revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels
  • The diversion of marijuana from states where it is legal under state law in some form to other states
  • State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity
  • Violence and the use of firearms in the cultivation and distribution of marijuana
  • Drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use
  • The growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands
  • Marijuana possession or use on federal property.

 

It also leaves the role of drafting regulations around the cultivation, distribution, and sale of marijuana primarily to the states. However, the memo stops short of a complete laissez-faire policy, leaving room for federal law enforcement to step in if the states fail to enact and enforce appropriate laws.

Where Does The Memo Stand Now?

When Donald Trump became president and appointed “law-and-order” advocate Jeff Sessions as Attorney General of the United States, many in the medical marijuana industry saw trouble ahead. And, in fact, in April 2017, just three months after Trump took office, Sessions established the largely secret Task Force on Crime Reduction and Public Safety. Comprised of a number of federal prosecutors and law enforcement officials, the group was tasked with developing guidelines and recommendations that supported Sessions’ extreme anti-marijuana views. Adding fuel to the fire was the fact that the task force co-chair was assistant U.S. attorney from Tennessee Steve Cook, who has long been an opponent of more liberal drug laws.

But the harsh new guidance never came to pass. According to an AP report from August of this year, the new recommendations “largely reiterate” the guidance in the Cole Memorandum, and encourage the federal government to continue studying whether to strengthen or rescind the Obama administration’s  “hands-off” approach. And while the report angered some conservatives, it appears to be a strong signal that the DOJ has no desire to try to up-end a booming multi-billion dollar industry — an effort that would almost certainly fail.

Learn More

At The Carmoon Group, we work with entrepreneurs and established businesses to find financial solutions that fit their needs. Whether you’re new to the medical marijuana industry or an established business looking for guidance in how to plan for growth, we’re here to help. Give us a call today to schedule an appointment to talk to one of our experienced professionals. Or just reach out to us online and we’ll get back to you right away.

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