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It turns out that if you want to know the Department of Justice’s policy on marijuana enforcement, you just have to sue them. In a remarkably candid showing of the DOJ’s current policy concerning marijuana enforcement, attorneys for DOJ recently wrote in a pleading in federal court in Massachusetts that marijuana businesses operating in accordance with state law do not face a credible threat of prosecution. Specifically, DOJ argued that marijuana operators in Massachusetts lack standing to challenge the marijuana provisions of the federal Controlled Substance Act because they are not going to be prosecuted for engaging in operations consistent with the state-issued license.

On the one hand, industry observers will recognize DOJ’s position as similar to the formal position taken by DOJ over a decade ago in the Cole Memorandum. In that memorandum, DOJ instructed federal prosecutors to exercise their discretion not to bring federal charges for the cultivation, processing, and sale of marijuana in states where state law authorized the activities – unless that marijuana activity implicated one of eight specified enforcement priorities.

The Cole Memorandum provided much-needed oxygen to the smoldering cannabis industry by making clear that DOJ was not interested in prosecuting businesses operating in accordance with state law. That assurance opened the door for the cannabis industry to come out of the shadows and provided a great deal of cover for non-cannabis companies to feel comfortable doing business with cannabis operators.

Former Attorney General Jeff Sessions rescinded the Cole Memorandum early in the Trump administration, and it has not been formally re-adopted by DOJ.

As a lawyer I feel both ethically and morally obligated to remind readers that as of this writing, marijuana remains a Schedule I narcotic under the Controlled Substances Act. To that end, it is at least arguably illegal under a strict reading of the law to manufacture, process, or sell marijuana.

On the other hand, short of rescheduling or descheduling, what more could the federal government say or do to let marijuana operators know that it is safe to conduct business in compliance with state law? To date:

  • Multiple attorneys general in the Trump and Biden administrations have indicated they intend to carry out the principles of the Cole Memorandum.
  • FinCEN has announced its intention to follow the Cole Memorandum enforcement priorities.
  • Every year since 2014, Congress has passed legislation defunding DOJ from prosecuting state-legal marijuana activities.
  • Federal prisoners charged with possession of marijuana have been pardoned.
  • Rescheduling marijuana to Schedule III has been proposed.

With all of these actions in recent years, I wouldn’t blame you for thinking that DOJ’s recent statement in a lawsuit in Massachusetts is not a change to federal marijuana policy. But I think it’s noteworthy that DOJ has publicly admitted what many have believed to be true, though it runs counter to the federal Controlled Substances Act.

We’ll be monitoring to look for any changes in the industry based on DOJ’s recent statement.