Massachusetts cannabis growers, distributors, and consumers are not receiving any assurances at the state level concerning immunity from federal prosecution.  After Attorney General Jeff Sessions released a memo last week stating that he was rescinding all federal protections outlined by the Cole Memo of 2013, the cannabis industry of Massachusetts was left wondering what this means for their industry going forward.  Andrew E. Lelling, the U.S. Attorney in Massachusetts stated that he cannot, “provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”


Why Is the Cole Memo So Important?

The Cole Memo was created in 2013 when states began legalizing recreational marijuana.  In it, then Deputy Attorney General James M. Cole, gave guidance regarding marijuana enforcement at the federal level.  He advised federal law enforcement officials to focus on certain priorities, such as preventing:

  • The distribution of marijuana to minors
  • Criminal enterprises, gangs, and cartels from receiving revenue from the sale of marijuana
  • States that do have legal recreational marijuana laws from diverting to states that do not
  • Any state-authorized marijuana activity from being used as a pretext or cover for illegal drug activity or trafficking
  • The use of firearms or any other type of violence in the cultivation or distribution of marijuana
  • Any type of drugged driving or other public health consequences associated with marijuana use
  • Marijuana from being grown on public lands
  • The possession or use of marijuana on any federal property

He also advised federal law enforcement officials to focus on these priorities, rather than on those who possessed small amounts of marijuana and allow the states to police themselves.  Part of the reason for this guidance was due to limited federal funds.


Why Should Congress Share the Blame?

Since Congress passed unambiguous federal law in the cultivation, distribution, and/or possession of marijuana, many in the Massachusetts marijuana industry have turned to Lelling for clarification and guidance.  Lelling has made it clear that he has taken a “sworn responsibility to enforce that law,” but also stated that he would proceed on a case-by-case basis.  He also alluded to the fact that there were limited federal resources to pursue any federal charges.

Lelling’s memo came less than a week after Attorney General Sessions’ announcement of the rescinding of the Cole Memo.  Apparently certain people and groups sought additional guidance and clarification as regulators in Massachusetts are moving forward with adult-use recreational marijuana programs.


Why Some Wonder If Sessions Actions Are a Threat or Bluster

Eight states and Washington D.C. have implemented the legalization of recreational marijuana and other states are considering legalization.  However, Congress has yet to discuss any laws that would make marijuana legal at the federal level.  Since the cultivation, distribution, and possession of marijuana is still illegal at the federal level, federal prosecutors have been directed to approach it as such. 

Many officials in states with legal marijuana, including U.S. attorneys, have indicated that they will not change their approach when enforcing marijuana laws, even after Sessions’ directive.  This leaves many residents of Massachusetts wondering if Lelling will take the same stance.

In a statement last week, Lelling seemed to side with Sessions when he said that marijuana was a “dangerous drug,” and that he would “aggressively investigate and prosecute bulk cultivation and trafficking cases, and those who use the federal banking system illegally.”  He also could not give assurances that any participants in the state-level marijuana industry would be “immune from federal prosecution.”

However, he went on to say that he would “proceed on a case-by-case basis,” leaving some to wonder if Massachusetts’ plans to distribute recreational marijuana in July would remain intact without fear of prosecution.  He gave additional hope by stating that federal resources were limited.  However, he would not explicitly state whether a certain group, such as state distributors, would be safe from federal prosecution.

Ultimately, it is up to Congress to provide the guidance and clarification that marijuana advocates are seeking.  Congress could simply pass a federal law ending prohibition on marijuana.  However, since Senator Cory Booker’s proposed bill to end marijuana prohibition has only one other co-sponsor and a Republican majority controlling Congress, a vote in the immediate future seems unlikely.

Brian Kelly, former assist U.S. attorney believes that “it’s mostly blunder.”

With a $40 billion market and a limited budget, it is not feasible to enforce cannabis laws.  But, the U.S. Attorney’s office may have already made an impact without any arrests being made.  Just this week, ten out of the seventeen medical marijuana dispensaries in Massachusetts had to revert to a cash-only system.  A key payment processing company called Lelling’s statement “too risky to continue,” and pulled out of the market.


Massachusetts Lawmakers Are Backing the Voters

Many elected officials in Massachusetts, both Democrat and Republican, have had strong reactions to Lelling’s statement.  Governor Charlie Baker, a Republican, suggested that Lelling focus his “limited resources” on battling the opioid crisis in the region rather than recreational pot users.  He stated that there is a public health crisis with opioid addiction and street drugs.  He did not include marijuana as an immediate concern to the public welfare.

In addition, the governor reminded Lelling that the voters of Massachusetts decided to create a “legal, regulated, recreational marijuana market,” in the commonwealth of Massachusetts.  Even though Baker opposed the 2016 marijuana ballot initiative, he stands up for the new state law.

It appears that Attorney General Maura Healey, who also opposed the 2016 marijuana ballot initiative, also supports the people.  Her department encourages the U.S. Attorney to provide guidance and clarification to “Massachusetts municipalities, residents, and businesses.”

Senator Elizabeth Warren is currently working on legislation to allows states to “enforce their own marijuana policies.”  She called the Justice Department “reckless” for their actions that have created uncertainty in Massachusetts and other states.  She posted on Facebook Tuesday that the state’s efforts to protect people’s health and safety by legalizing marijuana should be respected by the federal government.


The Massachusetts Marijuana Commission

The statements from Sessions and Lelling have not slowed down the state’s Cannabis Control Commission.  They have continued to work in finalizing the rules and regulations of the recreational marijuana industry in Massachusetts.

The five-member panel is currently making decisions in relation to the soon-to-open markets with issues ranging from promoting diversity and advertising to whether to allow marijuana in particular bars, theaters, and yoga studios.  Commission chairman Steven Hoffman stated, “We have a job to do and we’re going to continue to do the job.”   

So, until there is some action taken by the federal government, if there ever is, it appears that the marijuana industry in Massachusetts will proceed with the plans approved by the people of Massachusetts.