In 2013, then-Deputy Attorney General James M. Cole issued guidance on cannabis enforcement, directing the Department of Justice (DOJ) not to prosecute any state-legal cannabis businesses—taking a hands-off approach. His memorandum came in light of state ballot initiatives, like Colorado Amendment 64 and Washington Initiative 502, that provided for the regulation of cannabis production, processing and sale after voter approval in 2012.

According to Cole, the DOJ’s priorities should be focused on more pertinent duties, like preventing the distribution of cannabis to minors; revenue from going to criminal enterprises, gangs and cartels; cannabis trafficking across state lines; violence and the use of firearms in the cultivation and distribution of cannabis; and the growing of cannabis on public or federal lands.  

“The federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws,” Cole said in his memo. “For example, the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property.”

But in 2018, then-Attorney General Jeff Sessions issued a memorandum that rescinded Cole’s directive. The DOJ’s prosecutorial motives and powers over state-legal cannabis businesses have remained a gray area ever since.

In an interview with Cannabis Business Timesin January, multistate operator Curaleaf CEO Joe Bayern said guidance around the criminal aspects of cannabis and where the DOJ should be focusing its time would help build momentum in the marketplace.

That momentum may be on the horizon through the Senate’s confirmation of Merrick Garland as the 86th U.S. attorney general on Wednesday. As CBT contributor Michael H. Sampson wrote, Garland offered the state-legal cannabis industry in the U.S. reason for optimism, notably when he testified that he did not think it was a “useful use” of limited federal resources to prosecute most cannabis-related conduct.  

If Garland reinstates the Cole Memo, or issues his own memorandum with a clear directive to the DOJ, then state-legal cannabis businesses can have the confidence put their attention toward executing on current platforms as they gear for the next wave of growth. 

-Tony Lange, Associate Editor