Enforcing Federal Cannabis Laws: Summer 2018 Update

With July 1st in the rear-view mirror and provisional licenses spreading throughout the Commonwealth, we thought now would be a good time for an update on the status of federal law enforcement’s unenviable task of enforcing the federal prohibition against marijuana in a state that has decriminalized the drug.  First a quick history lesson: recall that in 2013, the Obama administration released the Cole memorandum, a document meant to provide guidance to federal law enforcement in those state jurisdictions that had decriminalized marijuana.  Essentially, the Cole memo took a “hands off” approach to the enforcement of federal drug laws like the Controlled Substances Act, which classifies marijuana as a Schedule I drug, in the states in question.  Fast forward to early 2018, when the Trump administration rescinded the Cole memo in a one-page document signed by the Attorney General.  Many legal observers, political analysts, and marijuana-policy experts agreed that the recession of the Cole memo would seemingly lead to dire effects on the nascent cannabis industry in several states across the country.  The only unknown at the time was just how aggressive the Department of Justice would be in its renewed enforcement practices.  The early sings were troubling: in January, US Attorney for the District of Massachusetts Andrew Lelling announced that his office would “aggressively investigate and prosecute bulk cultivation and trafficking cases,” sending chills down the spines of those operating within the industry here in the Commonwealth.  But since then, federal prosecutors around the country have signaled a willingness to continue following the broad principles outlined in the Cole memo.  And just last month, US Attorney Lelling made headlines yet again, this time by announcing that his office will not prioritize the investigation and prosecution of marijuana-related offenses.  Although his office would “not effectively immunize the residents of the Commonwealth from federal marijuana enforcement,” Lelling made clear that his office’s resources “are primarily focused on combating the opioid epidemic that claims thousands of lives in the Commonwealth each year.”  While stopping short of giving the industry the green light, Attorney Lelling’s statement has left the industry cautiously optimistic about the future of cannabis in the Commonwealth.

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