Smoke and Mirrors

Experts weigh in on mixed bag of effects from absence of Cole Memo

A patent on a cannabis product is the focus of a lawsuit in federal court.
A patent on a cannabis product is the focus of a lawsuit in federal court.

U.S. Attorney General Jeff Sessions sparked uncertainty in the marijuana industry Jan. 4 when he rescinded the Cole Memo, a signature directive left from the Obama administration that recognized marijuana’s federal illegality under the Controlled Substances Act but gave prosecutors the go-ahead to direct resources elsewhere.

The revoked directive puts discretion back in the hands of local federal prosecutors. U.S. politicians in Colorado met Sessions’ announcement with, at best, lukewarm reception.

Colorado’s U.S. attorney, Bob Troyer, announced he will not change how he directs his prosecutorial resources. Sen. Cory Gardner responded to the news with an outright rebuke, claiming Sessions had gone back on an earlier promise. Experts say the practical effects for marijuana businesses remain uncertain and for now can likely continue on as usual, but the absence of the Cole Memo could cause them to take extra care they operate within state law. Its revocation may also make businesses on the fence of getting into the marijuana industry think twice.

“I think what (Sessions) was really intending to do was to create greater uncertainty in this market to get it to slow down,” said Stinson Leonard Street partner Zane Gilmer. “The Department of Justice and Jeff Sessions had to do nothing more than rescind a piece of paper. … He did it the same week that California went live with recreational marijuana, and I think that the timing was not a coincidence.” Gilmer added he does not believe marijuana industries could have reached the burgeoning level they are at currently without the Cole Memo.

To read this story and other complete articles featured in the January 15, 2017 print edition of Law Week Colorado, copies are available for purchase online.