Despite campaign lip-service to supporting medicinal cannabis, we’ve long known that the current administration is anti-cannabis in all forms, be it medical or recreational, but up until this point, we haven’t seen any significant backward progress in policy, despite the attempts of Attorney General Jeff Sessions, who last May wrote a letter to Congress asking that they attempt to go after individuals and businesses in states that have legalized medical cannabis. With the looming expiration of the Hinchey-Rohrabacher Amendment on September 30, certain protections against federal prosecution for patients who use medical compliance in compliance with state law, as well as the businesses that supply them, are in jeopardy.

The Hinchey-Rohrabacher Amendment has been in place since 2014, and places strict limitations on Department of Justice (the “DOJ”) spending of federal money on any enforcement action against medicinal cannabis users, cultivators, distributors, and manufacturers in those states that have legalized it. In early May of this  year, Congress extended the amendment through September as part of a deal to fund the federal government through September. A 2016 decision handed down by the Ninth Circuit Court in United States v. Macintosh held that patients being prosecuted by the DOJ in states that have legalized medical cannabis were able to argue that the DOJ had overstepped their spending limits due to the Hinchey-Rohrabacher Amendment. More simply stated, if the patient was acting in compliance with state medical cannabis laws, the DOJ was not allowed to prosecute.

Last Thursday, September 7, the House Rules Committee blocked an amendment that would allow those protections for states and individuals to continue, which would have sheltered the medical cannabis industry in 29 states plus the District of Columbia. Representative Dana Rohrabacher, a Republican from California, pleaded with the Committee to allow a full House vote on the measure, but the Rules Committee blocked that vote. The 29 states (plus the District of Columbia) that stand to be affected by this lapse of the amendment are: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and West Virginia.

With the expiration of the Hinchey-Rohrabacher Amendment, we may see drastic shifts in policy in all states new to the cannabis industry, and we may see an increased focus by the DOJ on cannabis prosecutions, whether or not state laws allow for the sale and consumption for medical use. Cannabis is still considered a Schedule I substance (along with heroin), despite the fact that public opinion seems to suggest that cannabis should at the very least be decriminalized and potentially legalized. Almost 3/4 of American adults (73%, according to a poll published in April 2017 by Quinnipiac University) oppose medicinal cannabis prosecution by the federal government.

Even green industry pioneer states like Colorado, which has legalized both medical and recreational consumption, have been so concerned about the Trump Administration’s cannabis stance that they have been considering enacting law to protect the cannabis industry in the state in the state to allow all recreational cannabis businesses to immediately reclassify themselves as medical businesses should the federal government take any action against recreational cannabis as recreational cannabis was never protected by the Hinchey-Rohrabacher Amendment. This plan was conceived solely in an attempt to protect recreational cannabis businesses should the federal government begin seizing recreational cannabis. If the Hinchey-Rohrbacher Amendment does indeed lapse plans such as this would be rendered moot.

The cannabis industry, including both medical and recreational, has provided a significant societal improvement in a variety of areas, including job creation, tourism facilitation, and tax revenue generation for the states where it has been legalized. While issues of interstate transportation have been raised by states where cannabis is not legalized in any form, Colorado and other states have taken significant action to educate the public on the laws and to remind travelers of the rules regarding the use and transportation of cannabis. In 2016, Colorado became the first state to see cannabis become a $1 billion industry, with the average tax revenue for a state with legalized cannabis is $559 million coming solely from cannabis, over three times the tax revenue for alcohol sales, according to an April 2017 Forbes article.

Despite studies showing the efficacy of cannabis for a number of medical issues, the Trump Administration seems hellbent on shuttering the burgeoning industry even though public opinion holds otherwise. With more than half of US states currently allowing the use of medical cannabis, and the rapid expansion of recreational cannabis, it seems a fool’s errand to attempt to block such a sustainable, non-outsourceable, and profitable industry. When President Trump was running for the office, he indicated that he was pro-business and that he wanted to see job growth and revenue growth – despite the fact that Sessions’ vehement anti-cannabis stance seems to show no signs of changing course, it could be argued that any moves by the administration to block the green industry are anti-business, anti-growth anti-patriotic, un-American, and are not at all in the best interests of the country itself, the patients whose lives have been made easier and less painful by their ability to access cannabis as medicine, and in the best interests of the communities who are receiving significant increases in tax revenue as a result of these new and growing industries.

As of yet, we’ve heard nothing about any retraction of the Cole memo, which allows for federal prosecutorial discretion so long as cannabis isn’t in the hands of minors or grown on public land, along with a few other qualifications. The Obama administration viewed cannabis to be an issue of states’ rights, and then-candidate Trump echoed that sentiment last August in Denver, Colorado. 

We’ll be following this closely, as it appears that we are at a significant crossroads in cannabis policy, and concern is growing among those in the industry as well as those who benefit from it. While the industry has never had specific protections for recreational use and has still managed to thrive, now is the time to remain vigilant, but also to increase activism. If Congress is aware that their constituents are strongly against their attempts to limit the passage of rules regarding DOJ prosecutions of cannabis, they may be more willing to stand up to Sessions’ attempts to quash industry growth.

The information in this blog post (the "Blog" or "Post") is provided as news and/or commentary for general informational purposes only. The information herein does not, and shall never, constitute legal advice and therefore cannot be relied upon as a legal opinion. Nothing in this Blog constitutes attorney communication and is not privileged information. Nothing in the Post or on this website creates any kind of attorney client relationship or privilege of any kind.