Federal Spending Bill Fails to Expand Legal Protection to Recreational Cannabis Industry

by Wendel, Rosen, Black & Dean LLP
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Congress recently failed to protect the recreational cannabis industry from federal law enforcement, choosing instead to maintain a defense only for cannabis operators in states that have legalized marijuana for medical purposes.

In late March 2018 and with little fanfare, Congress renewed the Rohrabacher-Blumenauer amendment, which since 2014 has offered the medical cannabis industry some shelter from the Department of Justice. The amendment precludes the DOJ from spending funds to prevent states that have legalized medical cannabis “from implementing” their laws. The Ninth Circuit Court of Appeals has interpreted the amendment to mean that the DOJ cannot bring enforcement actions against medical marijuana providers complying with those state’s laws (U.S. v. McIntosh, 2016).

The amendment took on added significance in January when Attorney General Jeff Sessions rescinded the Cole Memo, an Obama-era policy advising the DOJ to take a hands-off approach to states regulating medical cannabis in compliance with a list of federal priorities. In response to Sessions’ announcement, a bi-partisan coalition pushed for a new spending bill amendment that would expand Rohrabacher-Blumenauer to recreational cannabis operators that comply with state regulations.

In February, eighteen U.S. Senators, including Kamala Harris of California, signed a letter to the Senate Committee on Appropriations supporting the new amendment. The senators wrote that rescinding years of guidance (the Cole Memo) has created “disruption, confusion, and uncertainty throughout the country. Citizens who have been acting in good faith based on federal and state assurances now feel exposed. This disruption may deny medications to the sick, push individuals back into illicit markets, and nullify the previously-effective regulations – all while thwarting the democratically-expressed will of the states.”

In the end, the effort to protect legal recreational cannabis operations from DOJ enforcement seems to have suffered from bad timing. The proposal came as Democratic and Republican leaders tried to avoid yet another government shutdown and grapple with other controversial issues vying for a place in the spending bill, such as gun rules and border security.  Many in the cannabis industry remain cautiously optimistic that Congress will eventually expand the Rohrabacher-Blumenauer amendment to protect recreational cannabis in states where it has been legalized.

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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.

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