The fate of medical cannabis hangs in the balance once again, as the Rohrabacher-Farr Amendment, also known as Rohrabacher-Blumenauer Amendment [“the Amendment” or the “Rohrabacher-Farr”]is set to expire on December 22. Rohrabacher-Farr, which has protected state medical marijuana programs from federal prosecution since it was passed after in 2014, and strengthened after being reauthorized by a larger majority in 2015, prohibits the Justice Department from using federal funds to interfere with state medical cannabis laws. (The Amendment was originally called the Rohrabacher-Hinchey amendment, and was initially proposed in 2001.)

The Amendment, which was previously set to expire in August, had been renewed annually since 2014, but this year, the vote was blocked by House Rules Committee, headed by Texas Republican Pete Sessions (no relation to US Attorney General Jeff Sessions). The amendment was extended at the last minute until December 8, at which point it was given another two-week extension until December 22. Now, with the looming expiration of the current spending package, Rohrabacher-Farr is up in the air again, and is entirely dependent on Congress to pass a spending bill that includes its continuation prior to the expiration of the spending package on Friday.

In late November, 66 congressmen and women, including Rep. Dana Rohrabacher, R-California, and Rep. Earl Blumenauer, D-Oregon, sent a letter to House and Senate leadership expressing support for the preservation of the bill. Currently, 46 states, as well as two US territories and the District of Columbia, have some form of legislation allowing cannabis, ranging from non-THC cannabinoid oil to the full cannabis plant. Five of the seven Colorado Representatives (Republicans: Ken Buck and Mike Coffman and Democrats: Diana DeGette, Ed Perlmutter and Jared Polis) were including as signatories on the letter.

It’s been nearly 50 years since the 1970 enactment of the Controlled Substances Act, which designated canabis as a Schedule I drug, and in that time, public opinion regarding cannabis use has changed drastically. Currently, 64% of Americans support legalization of recreational and medical cannabis. However, despite that information as well as the widespread adoption of measures to decriminalize and legalize cannabis on the state level, it appears that there are certain individuals who are reticent to accept the significant economic effects that decriminalization and legalization have had across the country, and who remain committed to the continuation of the failed “War on Drugs.”

While it appears that the entirety of the Justice Department does not back Attorney General Jeff Sessions’s drive to end cannabis in the US, the current situation highlights just how precarious the protections currently in place to protect the $9.7 billion industry are. The issuance of the Cole Memo and the Valentine’s Day Letters further outlined guidelines from the federal government regarding cannabis, including how to stay within the rules to avoid prosecution, both at the point of sale and from a financial perspective. Those documents have been used by the booming cannabis industry to assist with the creation and maintenance of legislation and regulations concerning the sale of medical and recreational marijuana, and how to manage proceeds.

Last Friday, Jeff Sessions said that the Justice Department would no longer be issuing guidance memos, like the Cole Memo, saying, “Guidance documents should be used to reasonably explain existing law—not to change it. From now on at the Department of Justice, that’s what they will do. I am announcing today that this practice is over.”

While there have been other high-profile memos issued by the Justice Department, including Loretta Lynch’s 2016 memo regarding bathroom use by transgender students, the Cole memo is absolutely the most important guidance memo issued regarding the cannabis industry. The DOJ noted that their lawyers would work to undo memos that have gone “too far,” a statement that is certainly cause for concern in the cannabis industry, which remains illegal under federal law, despite its success across multiple states.

Recently, Jeff Sessions indicated that the Justice Department had discussed revisiting the Cole Memo, saying, “We…talked about it at some length,” after being asked by a reporter, “As you think through ways to combat all drugs, have you given any further thought to federal treatment of marijuana and whether you want to keep the Cole Memo in place?”

Whether or not Sessions decides to take on the entirety of the cannabis industry by enforcing antiquated and ineffective marijuana laws, it is clear that most of the rest of the United States is firmly on the other side of the issue, having turned the industry into one that is expected to hit nearly $10 billion in 2017, with more revenue projected in 2018 as California begins recreational sales.

It is the opinion of this Firm that the Trump administration is beset by a plague of special interests and hypocrisy, and the Firm genuinely believes that if President Trump and his administration were actually seriously interested in economic growth and job creation, they would look to the cannabis industry as a model for revenue generation and economic expansion. With the opioid epidemic increasingly devastating communities and an alarming lack of available and affordable treatment options, coupled with broad wage stagnation across a multitude of economic sectors and the United States’ diminishing role on the world stage, now is not the time to dig in on policies that have proven not only ineffective and nonsensical, but also fruitlessly expensive to taxpayers and a burden on an already over-worked justice system.

The legalization of cannabis has not caused the social decline that many imagined it might, and instead, has proven to be a boon to the communities which benefit from the tax revenue, and have been able to reinvest that money into their communities to benefit education programs, public works projects, and to fund drug treatment programs.

The Firm believes that disruption of this industry by the Justice Department would directly contradict the best interests of the American people, and would create a level of distrust and disillusionment that would have far-reaching and long-lasting effects, not just for medical marijuana patients and recreational consumers, but for society as a whole. To act in a way that directly contradicts the will of the majority of Americans would be disastrous, and the outcry from the public would be deafening.

It is our most sincere hope that Congress acts swiftly and certainly to ensure that the Rohrabacher-Farr amendment remain in effect so as to continue protections for the medical marijuana industry, but also that the movement to decriminalize, legalize, and effectively regulate cannabis continues to progress parallel to other first-world nations, so that the US can continue to advance cannabis-centric scientific and medical endeavors while simultaneously reaping vast economic benefits.

 

 

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