Will the Federal Government Crack Down on Cannabis Enforcement?

Since attorney general Jeff Sessions was confirmed by the senate on February 8, there has been a lot of speculation about the future of recreational cannabis. Such speculation has risen from Sessions’ disparaging statements regarding cannabis use, such as when he stated “good people don’t use marijuana.” In addition, during a January senate confirmation hearing, Sessions stated that the attorney general did not have a choice of whether or not to enforce the federal law making cannabis illegal , and that it was up to congress to change the law if they wanted it enforced differently.

Given the growing number of states legalizing cannabis and the growth of the cannabis market as a whole, it’s easy to see why statements from top a ranking government official are making the cannabis industry so uneasy.

As of the November election cycle, there are 7 states plus the District of Columbia that have legalized recreational cannabis, with 26 states legalizing medical cannabis. According to one estimate by ArcView Group, a marijuana industry consulting firm, legal cannabis sales in 2016 reached $6.9 billion dollars, making it arguably the fastest growing industry in the world.

While the administration hasn’t formally announced any new plans for federal cannabis enforcement, Sessions isn’t the only member of the the president’s administration to discuss potential changes in enforcement. Last Thursday, White House Press Secretary Sean Spicer was asked about the status of state legalized cannabis under the new administration. In response, he speculated that under the new administration, “you’ll see greater enforcement of [recreational cannabis],” citing the fact that recreational cannabis is still illegal at the federal level.

So what happens now? In contrast to Sessions’ statements, while cannabis remains illegal at the federal level, the government does have discretion over whether or not to enforce those laws. In 2013 the Department of Justice issued a memorandum (aka the Cole Memo) to U.S. Attorneys on the use of prosecutorial discretion when it comes to enforcing federal laws on cannabis. The memo essentially states that the federal government will not use it’s limited resources to police robustly regulated state-legal cannabis. In other words, the department of justice did a cost benefit analysis and decided it wasn’t worth the cost to harshly enforce the federal law.

As mentioned, Sessions has not yet indicated how he will treat cannabis enforcement nor whether he will follow the guidance of the Cole Memo. While the memo remains intact it is likely that the status quo will remain in place. However, if Sessions decides to amend or completely lift the memo it could mean greatly increased enforcement at the state level, which in turn could stunt the growth of a billion dollar industry still in its infancy.