What is The Cole Memorandum for Cannabis?
Published on 2/25/22
It's no secret that legal cannabis is a booming industry. We all know that the legal cannabis industry is a multi-billion dollar juggernaut that's projected to grow more quickly than nearly every other category. The legal sale of cannabis is so lucrative that studies have found states who legalize have cashed to the tune of billions of previously untapped consumer dollars. It's pretty crazy to consider that all of that money was made without all states legalizing and cannabis still remaining federally illegal.
But that raises an interesting question. With cannabis still being federally illegal, how did pioneering states, when it comes to legal cannabis like California, Colorado, and Washington state, get away with state-funded recreational and medical programs without being shut down by the fed? Well, without getting too into the weeds with legal jargon, the core answer to that question is a set of guidelines from the U.S. Department of Justice called the Cole Memorandum.
What is The Cole Memo?
Building off of the precedent set in 2009 by former Attorney General David Ogden that directed U.S. attorneys in every state all over the country to "not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing laws providing for the medical use of marijuana," the Cole Memorandum is the next step in response to states voting to legalize recreationally.
When voters in Washington and Colorado legalized cannabis back in 2012, there were serious questions about how the fed would handle it. Would these states be allowed to sell for profit a plant that's federally illegal? If so, how would that work legally and with law enforcement? Well, the Cole Memo is the guide to help find answers to those questions.
Named after then-Attorney General James M. Cole, this comprehensive memorandum laid out a framework for prosecutors and state-level law enforcement in cannabis-legal states to follow when it comes to cannabis.
Perhaps most relevantly, the Cole Memo provides a detailed list of crimes and issues that state-level law enforcement should actually focus on prosecuting regarding cannabis. Here's that list:
- Preventing the distribution of marijuana to minors;
- Preventing criminals from profiting off marijuana;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Eliminating illegal activity and drug sales under the cover of state-sanctioned marijuana sales;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Eliminating driving under the influence and other marijuana-related negative public health outcomes;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
The keen-eyed reader will notice that the language in the Cole Memo is vague enough for the fed to still enforce aspects of that national Controlled Substances Act, the legislation that keeps cannabis federally illegal in the U.S. to this very day while allowing states that have legalized in one way or another to carry on without federal intervention. At the end of the day, the Cole Memorandum is a shining example of how legal cannabis states and the federal government can peacefully co-exist.
Like most things regarding the federal government, however, a new administration means new people in charge with often very different views on how strictly or loosely things like cannabis law should be enforced.
Why Was the Cole Memorandum Rescinded?
As the Obama era came to an end and the Trump administration took power, it was clear the direction the winds of change were blowing when it came to legal cannabis and law enforcement.
Newly appointed Attorney General Jeff Sessions, a well-known and outspoken proponent of harsher, less lenient drug laws when especially when it comes to cannabis, was quick to deviate from the Cole Memo. In fact, Sessions even made the policy change official by ordering the Cole memo rescinded on January 4, 2018. Sessions even went as far as releasing a memo of his own on the subject to take its place, officially putting the ball back in the hands of federal prosecutors to punish legal cannabis states again.
Fortunately for legal cannabis states, however, the move by Session turned out to be largely symbolic. Sessions would soon be out of a job, and his successor William Barr would have a much different take on enforcing federal cannabis laws on the state level. Barr even went as far as to come out in support of the Cole Memo, telling Congress during his approval hearings that "I'm not going to go after companies that rely on the Cole Memorandum." Barr's successor Merrick Garland doubled down on the support for the Cole Memorandum once again this year when he reiterated the statement that the Justice Department under his leadership would not pursue cases against Americans "complying with the laws in states that have legalized and are effectively regulating marijuana," in written responses to the Senate Judiciary Committee.
So what does all of that mean for the cannabis industry now in 2021? Well, in short, the Sessions ruling to have the Cole Memorandum rescinded was mostly symbolic. Despite Session's guidance, legal cannabis states just kept on doing their thing, unbothered by the federal law that should have prevented it from happening in the first place.
The Bottom Line
Despite the change in official policy away from the Cole Memo, it's still very much the law of the land. As more and more states introduce official legislation or vote to legalize cannabis in one form or another, and official legislation is brought to the table to federally legalize cannabis, it's clear that it's only a matter of time until legal cannabis is the law of the land here in the U.S.
Today, it's clear looking back that the Cole Memo paved the already existing road to full cannabis legalization in the not-too-distant future.
Have you heard about the Cole Memorandum for Cannabis? What are your thoughts on this memo? Let us know below!