What is the Cole Memo?

The Cole memo effectively allowed US States to decide for themselves how they wanted to approach the question of Cannabis legalization.

What is the Cole memo?

The US has some confused laws around the legalization of cannabis

The Cannabis industry is flourishing. Canada is about to legalese the drug for recreational use and estimates suggest that first year revenues from sales will hit more than $1 billion. South of the Canadian border, however, the picture, when it comes to legalization is far more cloudy.

While 30 US states have decriminalized or legalized medical marijuana consumption, Cannabis is still illegal at the Federal level. This conflict between States and Federation jurisdictions potential risk for businesses considering setting up in the industry. It’s a confused, uneasy situation, and it has arisen, in part, at least, as a result of the feud between President Trump and his current Attorney General, Jeff Sessions. At the heart of the whole thing is something called the ‘Cole Memo’. Let’s take a look at how these things fit together.



Why is the relationship between Trump and sessions so strained?

You might remember some of the details of why the Trump/Sessions relationship is so strained from the news.

Trump, The President, was disappointed, about a year ago, when, having just hired Sessions and put him in charge of aspects of the investigation in to alleged meddling by Russia during the 2016 elections, Sessions almost immediately rescued himself from the role.

Trump didn’t like that at all. The tension between Trump and Sessions has become even more strained over the 2 years since the initial appointment.

During that time, Sessions has repeatedly opposed cannabis legalization. He associates the drug with violent crimes and illegal immigration, although experts say there’s little evidence to support either claim.

In fact, it was Sessions who reversed Obama-era ‘Cole memo’ on January 4, 2018, making Cannabis a ‘Schedule 1 drug’ – i.e. determining that it is a dangerous substance with no recognized medical benefits. 



The history of the Cole memo

In 2013, 2 US states, Washington and Colorado, started setting up marijuana industries, after voters approved legalization in a referendum (with some appropriate regulation).

However, back then, despite local those referenda showing majority support in the States, the Federal Government still considered Cannabis dangerous and illegal. That meant those States, as well as individuals in them, consuming cannabis were technically going against Federal law.

The conflict led to a lot of questions for both state and Federal governments. Should the Federal govt. pursue strict federal enforcement? Should they ignore voters’ in the states which had made their thoughts clear?

So, in August 2013, then-Attorney General, James M. Cole drafted a memorandum to all US State attorneys. In it, he set expectations for both the Federal & State governments (specifically, their law enforcement elements) on how to address states that had implemented legal, adult-use marijuana programs.

In simple terms, The Cole Memo told States that if they implemented a strict regulatory framework to monitor the growth, distribution, and sale of cannabis, providing a transparent and accountable market, the Federal government wouldn’t intervene. Originally, the Cole memo effectively allowed the states to decide for themselves how they wanted to approach the question of Cannabis legalization. It amounted to a way to protect marijuana-legal states from Federal scrutiny.



The priorities of the Cole memo

The Cole Memo issued the following priorities for State-legal cannabis operations:

A quick scan of its inclusions show how reasonable (and actually well considered) they are:

  • Avoiding the distribution of marijuana to minors.
  • Avoiding the flow revenue from marijuana sales go to criminal organizations.
  • Preventing marijuana being taken from marijuana-legal states to the states where it’s illegal. 
  • Avoiding violence and firearms use in the cultivation and distribution of marijuana.
  • Preventing marijuana-intoxicated driving and other unfavorable public health consequences related to marijuana consumption.
  • Avoiding marijuana cultivation on public lands and practices that impose dangers on public safety and environmental health.
  • Prevent the possession or use of cannabis on Federal estate.



What happened when they followed the Cole memo?

The Cole Memo played a major role in the Federal government de-prioritizing the use of funds to enforce Marijuana prohibition. Once the memo was issued by Obama’s team, the Federal government effectively halted most marijuana prosecutions that were underway.

However, unfortunately, since, Sessions reversed the priorities set by the Cole memo, (calling them “unnecessary.” ) businesses are now confused as to what laws will apply to them and there are some very strange circumstances that exist.



The New Memo

Session’s document, issued to replace the Cole memo, is not nearly as clear as original. It allows U.S. attorneys decide which Federal resources to use for marijuana enforcement as per the priorities in their districts.

What the new memo does do, however, is give DOJ (Department Of Justice) officials clarity on the fact that they can use all important tools to address criminal organizations, drug crisis, and violent crimes within the country.

In essence, Session has rolled us back to pre-Cole Memo territory – so we have to start again.