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Federal Government’s Position on Medical Marijuana

A state law compliant medical marijuana business owner faces the prospect of arrest and subsequent prosecution by federal authorities. Moreover, they are subject to both civil and criminal prosecution which could result in fines and forfeiture of property and other assets. In a criminal case, there is also the possibility of a substantial custodial sentence. With the issuing of the Cole Memorandum, the federal government's position on medical marijuana was further clarified, in the sense that there were now considerations that states could take when prosecuting marijuana offenses. If you have been charged with a medical marijuana offense, get in touch with a skilled medical marijuana lawyer today.

Origins of the Cole Memorandum

On Aug. 29, 2013, US Deputy Attorney General James Cole issued a memorandum which described the approach US Attorneys in the 93 districts across the country were to take concerning the law in states that could be considered marijuana friendly. It is essential to understand that this memorandum does not have the effect of law and can be revoked at any time. It does not confer on anyone the right to avoid prosecution for a violation of federal law. It is also important to understand that the Trump Administration has yet to make itself clear on this issue. However, it appears that they will be taking a tougher stance on the recreational use of marijuana only, leaving medical marijuana laws largely in place and unchallenged.

It is essential to understand that this memorandum does not have the effect of law and can be revoked at any time. It does not confer on anyone the right to avoid prosecution for a violation of federal law. It is also important to understand that the Trump Administration has yet to make itself clear on this issue. However, it appears that they will be taking a tougher stance on the recreational use of marijuana only, leaving medical marijuana laws largely in place and unchallenged.

However, until the Trump Administration says differently, it is important to know what the prior Administration did. The Obama Administration adopted a policy of downplaying or ignoring the enforcement of federal laws it deemed inappropriate. These actions did not and cannot create an expectation that a new administration will continue the same or similar policies.

Eight Priorities of the Cole Memorandum

To present date, the Cole memorandum is still in effect and it does offer some guidance as to both federal government's position on medical marijuana, and what federal policy may look like in the future. The memorandum identified eight priorities which were to be considered in evaluating whether the US Attorney should consider prosecution.

  • Does the state program ensure that there will be no distribution to minors? A failure to effectively prohibit such sale would likely result to enforce federal law.
  • Does the statutory scheme ensure that the proceeds generated by the marijuana business will not be transferred to criminal enterprises, groups, or cartels?
  • Does the state law prohibit the transportation of marijuana from a state where it is legal to a state where it is illegal?
  • Does the state regulatory system ensure that the medical marijuana business will not be used as a cover for illegal activity including trafficking in other illegal drugs?
  • Is the use of firearms and violence in the sale and cultivation of marijuana prohibited by the state law?
  • Does the state law take steps to prevent drugged driving as well as addressing other adverse consequences associated with the use of marijuana?
  • Does the statutory scheme prohibit the cultivation of marijuana on public land?
  • Does the statutory scheme prohibit the use, possession, sale, and distribution of marijuana on federal land?

The Cole memorandum places great emphasis on the need for the state regulatory system to address these concerns. The federal government's reaction to state action will be predicated upon the "expectation that state and local governments have enacted laws authorizing marijuana will implement strong and effective regulatory and enforcement systems that will address the effect that these state laws to public safety, public health, and other law enforcement interests."

Other Aspects to Be Aware Of

Another development that those involved in the medical marijuana business should be aware of is the use of civil RICO by private litigants to seek damages from those involved in the medical marijuana business. This civil/criminal statute carries with it very significant financial penalties when used to initiate a civil action.

Like anti-trust litigation, there is a provision for treble damages in the event of an adverse decision. Could a group of physicians or pharmacists file a RICO lawsuit alleging damages based upon loss of revenue because individuals have chosen to use marijuana instead of FDA approved treatment? Would the damages be three times the amount of marijuana sold?

The issue of firearms can also arise and serve as an aggravating factor to a medical marijuana charge. Federal law makes the possession of a firearm about a drug trafficking offense a felony. 18 USC 924(c) makes it a crime to possess a firearm during the commission of a drug offense.

If someone is engaged in a medical marijuana business, it is possible to consider any firearm they may possess as being part of their otherwise legitimate medical marijuana business. A firearm at a business owner's place of business, on their person, or in their vehicle could give rise to a charge of possession during a drug offense.

Indeed, under certain circumstances, even a firearm in an individual's home could pose a problem. The best advice is to avoid firearms entirely. If someone is a hunter or recreational shooter, they should consider storing the guns away from their house or place of business.

Future of the Memorandum

The Cole memorandum is not in any way binding upon the present administration. Indeed, Attorney General Sessions has suggested that he may approach the matter in a very different manner, declaring on February 28, 2017, that, "states can pass the laws they choose. I would just say it remains a violation of federal law to distribute marijuana through any place in the United States, whether a state legalizes it or not."

There have been efforts in Congress to address the medical marijuana issue. The Rohrabacker- Farr or CJS amendment first passed in 2014 does nothing to address the problems posed by the US criminal code, which still classifies marijuana as a dangerous drug with no medical use.

Rather, it is a budget amendment that prohibits the Department of Justice from using funds to prevent states from implementing medical marijuana. Since it is only a budget amendment, it needs to be reaffirmed every year. It will end on April 28, 2017, unless the ban is included in the interim spending bill as seems likely. If you want to know more about the federal government's position on medical marijuana, get in touch with a knowledgeable medical marijuana lawyer who can answer your questions.

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