When the government briefly shut down on January 20, 2018, protections against federal interference in legal marijuana businesses expired right along with it. Those protections were embodied in the Rohrabacher-Farr amendment, which prohibits the Department of Justice from using federal funds to interfere with state laws that legalize medical marijuana.
The amendment is back in force, thanks to the passage of a stopgap spending bill on January 22. But it’s set to expire again on February 8, 2018, when the stopgap spending authorization runs out. What does this mean for the cannabis industry?
Feds: keep out!
The amendment (also known as Rohrabacher-Blumenauer) has been in place since 2014 and maintains that federal funds may not be used to prevent states from “implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
However, marijuana sales and use remain a crime under federal law. And in May 2017, when signing a federal spending bill, President Donald Trump stated, “Division B, section 537 [the Rohrabacher-Farr amendment] provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various states and territories. I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.” Marijuana reform advocates viewed Trump’s statement as a warning that his administration reserved the right to go after legalized marijuana businesses.
And on January 4, 2018, just weeks before the government shutdown, Attorney General Jeff Sessions rescinded the Cole Memorandum, an Obama-era directive that instructed federal prosecutors not to pursue criminal actions against legalized pot. The attorney general’s action unleashed federal prosecutors to more aggressively enforce federal marijuana laws.
Taken together, Trump’s statement and Sessions’ action indicate that the administration might ignore protections for legalized marijuana if they do not view those protections to be constitutional.
Are cannabis arrests imminent?
The marijuana industry doesn’t think so. “The industry is undeterred by federal regulatory affairs noise because cannabis is a states’ rights issue – my contemporaries are not worried that the doors will be kicked in and arrests are imminent,” says cannabis expert Garyn Angel.
“We do not believe that ganjapreneurs will soon find themselves in jail,” says Serge Chistov, financial partner to Honest Marijuana Company. “This situation with the government is typical—someone needs to make a decision and somebody needs to change existing regulations and move forward with the industry.”
Until all states legalize marijuana…
Industry experts are optimistic that states which have legalized medical marijuana will retain their protections from federal enforcement. “I think the whole situation with Sessions and what has been happening over the last couple of months is actually going to initiate or force the hand of decision makers to come up with a solution,” says Chistov.
“I look at it as a positive thing and do believe that states and local governments are not looking to lose the revenue streams our industry is bringing home. Because of that, we are conducting business as usual.”
Chistov says that demands from the cannabis industry for banking solutions and tax adjustments will “remove legalization from the death stand and generate some positive conversation.” It will be a fight that aims to change things rather than maintain the unpredictable status quo.