The Cole memorandum pops up frequently in media reports and discussions about the legal marijuana industry. This is especially true in recent days, when it appears it could be under attack by the Trump Administration.
But just what is the Cole Memo? Simply put, it’s all that stands between legal adult-use marijuana businesses and getting arrested by federal agents. Consequently, it’s the most important document in the legal marijuana industry.
It’s even more important now. In recent days, Attorney General Jeff Sessions has sent letters to Colorado, Oregon and Washington indicating he believes the states may not stand in compliance with the memo.
Cole Memo Overview
As states began legalization of adult-use marijuana, the federal government under then-President Barack Obama faced a challenge. With states legalizing marijuana, how should the federal government go about enforcing federal laws? Marijuana was, and still is, a Schedule I illegal drug under federal law.
Cracking down on marijuana sales would impede the rights of those who had voted for its use in those states. It also would violate the doctrine of states’ rights. In an attempt at compromise, Deputy Attorney General James M. Cole wrote a memorandum in 2013 calling for the Justice Department to not enforce federal law on marijuana against cannabis businesses operating legally under state law.
However, the memo stands on the idea that states will enact regulatory framework that tracks marijuana from seed to sale. The memo also requires states to work for prevention of:
- Distribution to minors
- Marijuana profits from going to criminal enterprises
- Marijuana being distributed from a legal state to an adjacent state where it’s illegal
- Legal marijuana providing cover for the sale of other, illegal drugs
- Violence or firearms becoming involved in the marijuana industry
- Drugged driving or other negative impact on public health
- The growing of marijuana on public lands
- The possession of marijuana on public lands
Why it’s a bigger deal now
In recent weeks, Sessions has sent letters to leaders in Colorado, Oregon and Washington asking for detailed reports on how they are adhering to the memo. He also apparently repeated that the federal government plans to enforce laws against marijuana, which he called a “dangerous drug.”
For some, this signals he might be looking at violations of the memo’s “prevention of” section. Meanwhile, the Associated Press obtained portions of a report that a committee formed by Sessions delivered last month.
The Task Force on Crime Reduction and Public Safety apparently developed no new policies for Sessions to implement. According to the Associated Press, the group “largely reiterates the current Justice Department policy on marijuana.”
Given that, Sessions focus on the Cole memo may indicate a new approach. While to this point it’s been all talk, the cannabis industry will continue paying very close attention to Sessions in case talk turns to action.