Big month ahead for federal cannabis policy in Congress

by Thompson Coburn LLP

Thompson Coburn LLP

With federal protections for medical cannabis set to expire in early February, federal cannabis policy will be closely watched in Congress in the coming weeks.

As previously reported on Tracking Cannabis, federal protections for medical marijuana are, for now, tied to annual spending legislation. As the industry is aware, the federal protection has come in the form of an appropriations amendment that is reviewed during the appropriations process each year and, to date, has been annually renewed.

The appropriation process for Fiscal Year (FY) 2018 has been anything but normal. Since the start of FY 2018, Oct. 1, 2017, the federal government has been temporarily appropriated under a series of four Continuing Resolutions (CR). With the current CR expiring on Feb. 8, 2018, lawmakers are anticipating a fifth CR that would extend federal funding and the medical marijuana protections under the Rohrabacher-Blumenauer appropriations amendment until mid-March.

A fifth extension should give Congress enough time to negotiate final spending levels, as well as immigration legislation that has been intertwined with the spending fight. Because congressional appropriators have no clear direction on funding levels, they haven’t been able to hash out legislation that would fund the government until the end of the fiscal year, Sept. 30, 2018. Furthermore, they have been unable to decide the fate of policy riders, such as the Rohrabacher-Blumenauer medical marijuana protections. The language from this amendment appears in the Senate-passed version of the bill but not the House-passed version.

While the Rohrabacher-Blumenauer Amendment is the only shield preventing the Department of Justice from prosecuting medical marijuana producers, even more uncertainly surrounds recreational cannabis, which currently has no protection from federal prosecution after the revocation of the Cole Memorandum on Jan. 4, 2018.

About a week after the memorandum was revoked, 69 members of Congress sent a letter to House leadership and House Appropriations Committee leaders asking for language to be included in the FY 2018 spending legislation that would also prevent the DOJ from interfering with state marijuana laws related to recreational cannabis.

Unfortunately for advocates of recreational marijuana, the adoption of this language is a long-shot. House and Senate rules governing conference committees prohibit “out of scope” material in negotiations between the two legislative bodies. In other words, because the recreational cannabis protections are not included in either the House-passed or Senate-passed appropriations bills, the language is not eligible for consideration. Is it possible for the House and Senate to waive these rules? Yes, but that is a hurdle not easily cleared.

Despite the fact that the expanded protections are unlikely for FY 2018, the suggestion of this language still holds value. First, it sets the stage for having the language included in the FY 2019 appropriations legislation. Second, it increases the chance that medical marijuana protections are adopted because it positions this language as the middle ground on these issues.

The next few weeks will be a critical time for medical marijuana. The following months will be critical for developing and establishing broader protections on a more long-term basis.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.