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   From: a425couple@hotmail.com   
      
   A Top Cannabis Lawyer on What Losing the Cole Memo Means   
   TOBIAS COUGHLIN-BOGUE   
   January 5, 2018   
      
   Jeff Sessions’ decision to rescind the Cole memo, considered by many to   
   be the founding document for legal cannabis, came as a major shock to   
   the cannabis community. But that memo was just a memo—not a law.   
   “Today the shops are open, the dispensaries are open,” said Carlos   
   Blumberg, a Nevada cannabis lawyer and the founder of the Nevada   
   Dispensary Association. “There are state laws that allow them to be   
   open, there are state laws that allow cards to be issued, there are   
   state laws that allow for cultivation and edibles.”   
      
      
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   The Cole Memo: What Is It and What Does It Mean?   
   The same disparity between state and federal law that existed before the   
   Cole memo was rescinded still exists, he noted, and the feds have the   
   same authority to crack down on cannabis now that they did before. All   
   the Cole memo did, he pointed out, was give guidance on ways to avoid   
   that crackdown.   
      
   “You need to get to know the US attorney in your jurisdiction, which you   
   should have done anyway!”   
   Hilary Bricken, cannabis attorney   
   “What we’ve had with the Cole memo was a certain amount of clarity as to   
   what the federal government was looking for,” said Daniel Shortt, a   
   Seattle attorney at the cannabis-centric firm Harris Bricken and   
   founding member of the University of Washington law school’s Cannabis   
   Law and Policy Project. Federal law on cannabis hasn’t changed   
   significantly since the Marihuana Tax Act of 1937, Shortt said, but he   
   still cautioned that Sessions’ move wasn’t something to take lightly,   
   legally speaking.   
      
   “For people who are advising these businesses or working with these   
   businesses, it’s important to explain what’s happening here,” Shortt   
   said. “This is a significant change. It’s important to make sure people   
   are aware of the impact of the Cole memo.”   
      
   To get a sense of that impact, Leafly consulted Hilary Bricken, also of   
   Harris Bricken, who is one of the nation’s foremost experts on cannabis   
   law. She spoke about about what the decision means and what the cannabis   
   industry and its customers can do to protect themselves.   
      
      
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   Leafly: If you’re a business owner or a member of the industry, what   
   should you do and what should you be concerned about?   
   Bricken: Well, number one, you shouldn’t panic. Number two, it’s   
   business as usual. You stick to state-law compliance, you have a good   
   relationship with your regulators, you pay your taxes. At the same time,   
   you should not ignore this, and you need to get to know the US attorney   
   in your jurisdiction, which you should have done anyway! And I don’t   
   mean a meet-and-greet with tea and sandwiches. You need to find out what   
   their prosecutorial record is and what they care about. Some of them   
   have made their names on certain sectors of enforcement, and you need to   
   know if they’re super drug-focused or not.   
      
      
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   Are there different concerns for medical cannabis and adult-use cannabis   
   businesses?   
   In the 9th Circuit, certainly, because of the Rohrabacher–Blumenauer   
   amendment. We have good case law for the 9th Circuit that says [the   
   federal government] can’t spend money to interfere with   
   state-law-abiding medical cannabis operators. [Eds. note—states in the   
   9th US Circuit Court of Appeals are California, Oregon, Washington,   
   Montana, Idaho, Nevada, Arizona, Hawaii, and Alaska.]   
      
   I wouldn’t put it past the DOJ to try their hand in federal court in   
   some of these other circuits to get a different result. Because that   
   [amendment] on its face does not say that operators are protected in any   
   way.   
      
      
   RELATED STORY   
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    From an investment standpoint, do people stand to lose the money   
   they’ve put into businesses?   
   You could see a really zealous prosecutor go from employees at the store   
   or principals of the company to the investors to the ancillary   
   businesses that support them in order to try to wrap it up in a big   
   criminal ring. But it would totally depend on the US attorney. Some of   
   them I don’t think are going to care at all. They’re seasoned pros and   
   vets and they’re not going to do anything politically volatile. These   
   other ones in more conservative places—like, for example, the Eastern   
   District of Washington, with [former US Attorney] Michael Ormsby and the   
   Kettle Falls Five—in a jurisdiction like that, yeah, you could stand to   
   lose majorly.   
      
      
   RELATED STORY   
   In Surprise Move, Justice Dept. Stands Down on ‘Kettle Falls Five’ Case   
   Would they be prosecuted under conspiracy law?   
   Aiding, abetting, conspiring to violate the Controlled Substances Act.   
   White-collar crimes for money laundering. I think that’s what they would   
   look at. And I say “zealous prosecutor” because those are not easy   
   charges to bring. You’d really have to build that case and be totally   
   dedicated.   
      
   So maybe if you’re an investor, you’re worried last?   
   I would say in the line for getting punched in the face, you’re not   
   first. You’re certainly not last.   
      
      
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   What does this mean for people who just want to smoke and possess cannabis?   
   Y’know, technically, legally, if they’re in possession of it or   
   consuming it, they too are involved in a federal crime. However, based   
   on the recent past, it is highly unlikely that certain U.S. Attorneys   
   would ever prioritize the prosecution of state-legal consumers. So,   
   while prosecution is legally possible because of current federal laws,   
   it’s still not very likely.   
      
   In California, numerous people are in the midst of the legal-cannabis   
   licensing process. Would you, as a lawyer, encourage such people to   
   continue participating in that process? Is it a smart move?   
   It’s funny, I never really give any advice about encouraging or not   
   encouraging clients. My position is, “Can you sleep at night?” If you’re   
   afraid and uncomfortable, you don’t need to be doing this. But if you   
   can tolerate the risk, it may work for you. And you should proceed in   
   the face of that risk, cautiously. It’s such a personal decision,   
   whether you view this as being about civil liberties or a business   
   opportunity or whatever.   
      
      
   RELATED STORY   
   Confusion Reigns in Los Angeles on California’s First Day of Legal Sales   
   How much does the rescinding of the Cole memo increase that risk they’re   
   taking?   
      
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