By John Schroyer
Life could get a lot harder for the marijuana industry in the next two months, with advocates warning that a pair of cannabis business-protecting federal policies could be in serious jeopardy.
At issue is what action the federal government may take involving the precarious 2013 Cole Memo and expiring Rohrabacher-Farr Amendment.
The 2013 Cole Memo has guided many state-level marijuana regulations – especially on the recreational cannabis side – and the Rohrabacher-Farr Amendment protects MMJ companies from federal prosecution.
“It’s almost back to where we were in 2009, where all I was doing was federal risk mitigation,” said Charles Feldmann, a Colorado-based cannabis attorney and former Drug Enforcement Administration agent.
The situation
U.S. Attorney General Jeff Sessions has been vocal about his opposition to marijuana and earlier this year set a July 27 deadline for a Department of Justice task force to make policy recommendations that include cannabis.
The DOJ’s public affairs office didn’t respond to requests for clarification on whether the task force’s conclusions will be made public.
But those recommendations could lead Sessions to jettison the Cole Memo, a nonbinding set of DOJ policies laid out during the Obama administration in response to the 2012 recreational marijuana legalization in Colorado and Washington state.
Because the Cole Memo wasn’t set into federal law by Congress, Sessions can toss it at any time. And that’s what several industry observers expect to happen.
Rob Kampia – executive director of the Marijuana Policy Project – believes there’s a “100% chance” the Cole Memo will fall prey to a more hard-line stance toward cannabis that “will almost surely be worse” for marijuana businesses.
Then there’s the Rohrabacher-Farr Amendment, which is the only protection currently in federal law for medical marijuana businesses. The measure was extended by Congress in April but expires at the end of September.
Kampia is among the stakeholders worried the amendment may not be renewed: “I would say it’s a coin toss.”
Not only has Sessions been actively trying to persuade Congress to kill the law, but during the House appropriations process, there hasn’t been a real opportunity for the Rohrabacher-Farr provisions to be amended into the bill, Kampia said.
One question is whether GOP House leadership will allow amendments to be offered from the floor when the appropriations bill comes before the full chamber, Kampia said. That issue will be resolved this week, according to a House Rules Committee spokeswoman.
If floor amendments aren’t allowed, the provision can still be added in the Senate.
But even if that happens, it could be removed later by a conference committee charged with reconciling policy differences between House and Senate appropriations measures.
Steph Sherer – executive director of Americans for Safe Access – noted that last year a conference committee stripped out a pro-cannabis provision, even though it had passed both chambers.
A positive spin
However, Michael Collins – the deputy director of the Drug Policy Alliance – believes the Rohrabacher-Farr Amendment will be renewed.
Collins says he’s gotten confirmation from U.S. Sen. Patrick Leahy’s office that the Vermont Democrat will introduce the amendment during the Senate appropriations process. Leahy staffers were unable to confirm Collins’ statement.
“Last year, we didn’t get a vote on (the amendment) on the House side,” Collins said, “and it still got added to the final bill. Why?
“Because we added it in the Senate Appropriations Committee – which we’re going to do this week – and also because the amendment is institutionalized now.”
A spokeswoman for U.S. Rep. Earl Blumenauer – one of the House members leading the charge on the Rohrabacher-Farr Amendment – said the Oregon Democrat “remains confident and optimistic that as long as we have regular order,” the amendment will be renewed.
The upshot
If the Cole Memo and Rohrabacher-Farr Amendment are done away with, there’s nothing keeping Sessions back from a full-on legal assault on marijuana businesses.
“Let’s hope we’re all wrong and that it’s all unicorns and rainbows for everyone,” said Feldmann, the Colorado attorney. “But if it’s not, you need to be prepared.”
He pointed to Sessions’ recent change in asset forfeiture policy, which is a tool the DOJ could use against the cannabis industry.
“This is a war room. We’re starting to see the movements of the war machinery being moved around the theater,” Feldmann said.
However, many predicted that even in a worst-case scenario, the industry is far too big to simply be shuttered.
It’s more likely a federal crackdown would involve making examples of a few higher-profile companies, probably in Colorado and California, Feldmann predicted.
But that could also lead to cannabis investment money drying up.
“If the question is, can (the DOJ) shut the marijuana industry down? No, that’s impossible,” Feldmann said. “Can they drastically slow it down and cause a lot of big money to exit? They can do a lot of that.”
Kampia added that the DOJ and U.S. attorneys could use threat letters to try to scare MJ companies into shuttering.
“It would be governmental terrorism, basically,” he said.
Sherer said MJ businesses should start prepping for the possibility of DEA action, including potential raids.
“A raid is basically a scary serving of a search warrant – and they’re often done without arrests – but what they’re looking for is more evidence to make an arrest,” Sherer said, noting the ASA site contains a raid preparedness tips page.
“Most people end up giving information to the police instead of choosing to remain silent, and that can get people in a lot of trouble,” Sherer said. “A lot of (MJ business) owners have a plan for themselves, but they’ve never talked to their staff about it.
“This is a good time for people to really take a look at something they often ignore: They are committing federal civil disobedience every day of the year.”
John Schroyer can be reached at johns@mjbizdaily.com
