AG Changes Guidance on Marijuana, But Not Laws

U.S. Attorney General Jeff Sessions recently issued a memorandum to all U.S. Attorneys instructing U.S. Attorneys nationwide to use the Department of Justice’s general principles in enforcing Federal marijuana laws. Sessions further rescinded all of the DOJ’s previous guidance1, including that found within the frequently-referenced “Cole Memo.”

It is important to note that none of the previous guidance constituted a change in the law, and explicitly so stated. Cultivation, processing, distribution and sale of marijuana – whether recreational or medical – remains illegal under Federal law under the Controlled Substances Act. The previous guidance served as a policy of the DOJ for how U.S. attorneys were to use their vast prosecutorial discretion.

It is our view that there is no change to this vast discretion, and that the memorandum echoes Sessions’ long-standing views on marijuana generally. The rescinding is not unexpected, given his widely available public statements, but generally moves in the opposite direction of public sentiment, scientific research and states, like Ohio, that, on a bi-partisan way, have chosen to regulate the use of medical marijuana for patients with qualifying conditions.

Clients should remain ever vigilant to remain in compliance with Ohio applicable statutes, regulations and State interpretations. As a medical marijuana only state, Ohio is still under some protection by the Rohrabacher-Blumenauer Amendment. Unless we become aware of public statements or activities from the U.S. Attorneys in Ohio’s Northern and Southern Districts, the Ohio Attorney General or the Ohio Medical Marijuana Control Program’s participating agencies, we do not anticipate any deviation from Federal previous enforcement norms, or the inherent risks known to those participating in this burgeoning industry.

1. David W. Ogden, Deputy Att'y Gen., Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009); James M. Cole, Deputy Att'y Gen., Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011);James M. Cole, Deputy Att'y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013); James M. Cole, Deputy Att'y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes (Feb. 14, 2014); and Monty Wilkinson, Director of the Executive Office for U.S. Att'ys, Policy Statement Regarding Marijuana Issues in Indian Country (Oct. 28, 2014).