If your New Year’s resolution was to stop paying attention to the news you may have missed that last Thursday U.S. Attorney General Jeff Sessions formally rescinded the Cole Memo – which we covered here and here. By rescinding the Cole Memo, Sessions, whose outdated and prohibitionist stance on cannabis is well documented, has sown uncertainty in the states that have legalized cannabis use. This is especially true for the states that have legalized and are regulating adult-use cannabis businesses and individual rights.
To some extent, cannabis businesses are already feeling the effect of this new and uncertain landscape. But in following up on his antiquated stance on cannabis, did Sessions overplay his hand? Will this be a Pyrrhic victory for the prohibitionist crowd? With recent polls showing that 64% of Americans support legalizing cannabis (even 51% of Republicans support legalization) Sessions might have done cannabis proponents a favor by bringing the federal government’s stance into the national spotlight. So the next question everyone’s got to be asking themselves is “what do we do now?”
The most pressing thing that we can do is get Congress to extend the Rohrabacher-Blumenauer Amendment (“RBA”) and include adult-use cannabis into its provisions. We covered the RBA a couple of weeks ago but in case you missed it, here’s the Cliffs Notes version: the RBA is a federal budgetary provision that prohibits the Department of Justice from spending money to interfere with the implementation of a state’s medical cannabis laws. The RBA has proven to be a valuable protection for medical cannabis businesses as evidenced by the Ninth Circuit Court of Appeals ruling in U.S. v McIntosh. In McIntosh, the Ninth Circuit ruled that the DOJ could not use funds to go after medical cannabis businesses that were operating in compliance with their medical cannabis state laws.
The RBA provides medical cannabis businesses with some protective certainty (at least for those states under the Ninth Circuit’s jurisdiction), but moving forward there are two glaring concerns: 1) the RBA only applies to medical cannabis businesses; and 2) since the RBA is a budgetary provision it needs to be included in the federal budget and that budget is set to expire on January 19! The likelihood of a Republican led congress including adult-use cannabis into the RBA prior to January 19th is pretty slim, but if Republican Senators like Continue Reading
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