The decision by Attorney General Sessions to repeal the Cole and Ogden memos has brought greater legal uncertainty to an industry that is used to uncertainty. What does the decision mean for Massachusetts?
First, at least in the short term, the decision should not have a major effect on our medical marijuana industry in the Commonwealth. Under the Rohrabacher-Farr amendment, federal prosecutors may not use resources to prosecute those in the medical marijuana industry who are acting consistently with state law. That amendment needs to be extended by Congress towards the end of the month.
Second, despite General Sessions announcement, the Massachusetts Cannabis Control Commission announced that it will move ahead with recreational licensing with the goal of issuing licenses in July 2018.
Third, General Sessions decision provides Massachusetts US Attorney Andrew Lelling with the discretion to prosecute actors in Massachusetts who are acting consistently with state law. U.S. Attorney Lelling’s initial statement did not say that he will change the Office’s priorities to prosecute state sanctioned activity. In fact, Attorney Lelling indicated that his office “will continue to pursue federal marijuana crimes, especially bulk trafficking which has had a devastating impact on local communities.” However, US Attorney Lelling’s later statement is more troubling than his earlier statement in that he refused to rule out prosecution of state sanctioned actors.
What should give the industry comfort in Massachusetts is that nearly every elected official in the state including Governor Baker criticized Attorney General Sessions’ decision and in 2016, the voters of Massachusetts approved the creation of the industry. In this environment, it seems unlikely that US Attorney Lelling will want to prosecute state sanctioned actors especially where the Commonwealth is working to set up controls to prevent diversion and drug access to minors.