Last week, Attorney General Jeff Sessions repealed the Cole Memo and implemented his own memo to state attorney generals regarding marijuana enforcement and prosecution. If you haven’t already, review last week’s blog post before proceeding.
The question I have been fielding since that announcement is: What now? What next?
There is no crystal ball but—for now—medical marijuana is safe.
Currently, federal prosecutors are hamstringed in their ability to go after the medical marijuana industry due to the Rohrabacher-Farr Amendment, now called the Rohrabacher-Blumenauer Amendment (“Amendment”). The Amendment is a change to the federal budget which prohibits the Justice Department from spending funds to interfere with the implementation of state medical marijuana laws. While the Amendment is in place, federal prosecutors and law enforcement cannot take action against the medical marijuana industry.
We saw this play out with the Kettle Falls Five, a case of four family members and a family friend who were charged under federal law in 2013 for cultivating and distributing cannabis. The family friend, Jason Zucker, cut a deal with prosecutors and turned state’s evidence against the family. One member died of cancer in 2015. The remaining three were found guilty of growing cannabis and appealed their case, claiming that they were protected by the Amendment. In 2017, prosecutors agreed and admitted that they were not allowed to proceed because of the Amendment. The case was dismissed without prejudice, meaning that the government could reopen the case if funding is restored. Similar cases also exist in California.
The Amendment is up for a vote on January 19, 2018, and there is reason to believe that Big Pharma is lobbying hard for its repeal. In an article posted to The Hill, on January 3, 2018, the Amendment is declared “detrimental to public health” and medical marijuana is attacked for lack of FDA approval. It appears that Big Pharma is developing a CBD medication, which would compete with medical marijuana providers in the 29 states where it is legal. One way to combat competition is to repeal the Amendment and direct federal law enforcement to target the medical industry. If the Amendment does not pass this upcoming vote, the medical marijuana industry could become a target, with apparent Big Pharma backing.
Medical marijuana providers and patients have the most at stake in keeping the Amendment in place. However, the entire industry could feel the repercussions of repeal – more federal presence, less funding from investors, and fewer customers.
JDSA attorneys are keeping apprised of the situation. We will continue to update this blog as news breaks.