U.S. Attorney General Jeff Sessions issued a memorandum on Thursday, Jan. 4 overriding the Obama Administration-era Cole Memorandum. This new direction recertifies the Justice Department’s commitment to enforce all parts of the Controlled Substances Act of 1970, namely cannabis which the 2013 Cole Memorandum largely ignored by design, according to the Cole memo.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," Sessions said in a DOJ Office of Public Affairs press release. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."

This raises the question of what medical and planned recreational cannabis merchants are going to do especially in states like Maine which have legalized the sale and use of cannabis and where a medical program has thrived for nearly 20 years.

The Cole Memorandum was drafted by U.S. Deputy Attorney General James Cole in 2013 under the Obama Administration. It barred U.S. Attorneys from trying cases against marijuana-related businesses unless in conjunction with other federal and state crime.

Darrell Gudroe, consultant and caregiver at Pharmers Market in Boothbay, said this was one of two measures at the federal level that give both recreational and medical cannabis businesses enough room to operate.

The other, the Rohrabacher-Blumenauer Amendment (R-B Amendment), prohibits the Department of Justice from spending federal money to challenge states’ introduction of medical cannabis programs. The interpretation of the amendment also includes recreational cannabis and leaves just enough room to allow the DOJ to prosecute cannabis businesses if the original offense did not start with cannabis, said Gudroe.

“It was the combination of those two things that provided us the full safety net … that made us comfortable,” said Gudroe.

But all the rules, laws, amendments, memorandums and stipulations make the cannabis industry complex to navigate. For example, whenever a caregiver, dispensary or recreational storefront makes a transaction, they take a sales tax which goes to the state. Gudroe said this makes the state complicit in breaking a federal law.

If that does not complicate the federal and state relationship enough, Gudroe said, municipalities are now being allowed to act as tax collectors in an effort to cut Augusta out as a middleman, to keep tax monies which would only end up back in the town anyway.

When Sessions’ memorandum came down, Gudroe got in on a group conference call with House Representative Earl Blumenauer of Oregon’s District 3.

“(Blumenauer’s) message in that call was for us to know that Sessions was acting alone, to not feel concerned that this was some part of a grander plan and that this is step one,” said Gudroe. 

Gudroe said he is encouraged to believe cannabis is on the fast track to federal legalization because there is more and more support for the Rohrabacher-Blumenauer Amendment.

“… People have come out behind and backing (it) that haven’t in the past. They’ve either not voted for it at all or they have voted for it, but been silent in their vote. Now those people are coming out and recommending others vote in their favor … They’re recognizing at the federal level that this is something that can’t be ignored.”

Seldom vocal owner of Pharmers Market, Jan Martin, clarified that even with the new direction for the DOJ, it is still up to the individual U.S. District Attorney to decide on pursuing action against businesses breaking federal law. The U.S. Attorney for the District of Maine, Halsey Frank – a Trump appointee who has a history of trying such cases – has already publicly stated that marijuana is not going to be a priority for his office, said Martin.

Despite the small amount of protection that gives businesses and business owners, Gudroe said he and Martin are encouraged by Frank’s concentration staying on other topics such as the opioid epidemic and human trafficking.

Gudroe and Martin are wary of federal dealings in recreational and medical cannabis, but at this point, it is the constant motion of laws and regulations coming from Augusta that he is more focused on. With the talks in the legislature varying wildly, Gudroe and Martin have around 35 different drawings on how a recreational store would be laid out.

Gudroe said that when cannabis is legalized across the board, he hopes the medical program will continue as it allows patients consultation services and dosage leniency that a regular transaction would not. He said a bill about to be brought to the floor of the state legislature would add a line to the qualifying conditions that leave it up to the healthcare provider’s discretion whether or not cannabis can be a medical avenue for their patients.

As Sessions rolls back the Obama-era protections for states which have legalized cannabis, Gudroe and Martin continue with business as usual – and then some. Said Gudroe, “We are trudging forward, we’ve sent in our deposit for a lease in South Portland to open up a second location there and our organization’s goal is to have between six and 10 stores peppered throughout the prime locations in the state.”