US Attorneys, state officials and cannabis industry representatives met in Portland, Oregon on February 2 to discuss how to enforcement will change after Attorney General Jeff Sessions announced changes to Department of Justice (DOJ) policies on the prosecution of marijuana cases. The answer: a crackdown on illegal overproduction in states where cannabis production is legal and a focus on reducing the amount of cannabis being diverted to states where it is still illegal.

On January 4th, the DOJ released a memo that directed all US Attorneys to enforce “the laws enacted by Congress” and “follow well-established principles when pursuing prosecutions related to marijuana activities.” The memo rescinded the Cole Memo and other DOJ guidance that reduced the likelihood of federal prosecution of cannabis businesses in states that permit medical and recreational cannabis use. After the DOJ announcement, the cannabis industry was unsure of how these changes would affect cannabis operations legal under state law and uneasy about the future of the industry.
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Don’t look now cannabis businesses, but your neighbors may be raising a racket. A June decision by the 10th Circuit Court of Appeals in Denver may have opened the doors to new legal challenges to marijuana operations: civil suits under the Racketeer Influenced and Corrupt Organizations Act (RICO).

RICO was originally intended to go after the mafia and other organized crime, but its broad language means it can be applied in other settings. RICO allows a private citizen to sue “racketeers” for damage to business or property due to the racketeer’s illegal activities or activities that were conducted under his guidance. Since marijuana remains illegal under federal law, the production or distribution of marijuana is considered racketeering.


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To follow up on our prediction last month that the Trump Administration may take a more aggressive stance toward the legalization of marijuana, White House Press Secretary Sean Spicer stated during the February 23 daily briefing that he anticipates greater federal enforcement of marijuana laws.  Spicer emphasized the distinction between medical marijuana (the legalization of

The incoming Trump Administration may usher in a more hostile climate to state efforts to legalize the sale and distribution of marijuana and products that contain the drug. The Obama Administration opposed the federal legalization of marijuana, but its enforcement approach, which focused on persons and entities whose conduct interferes with eight drug enforcement priorities, is outlined in a memorandum. This guidance does not have the force and effect of law, which means that the incoming Administration may replace it with a new guidance addressing prosecutorial discretion in marijuana cases. Below we examine the positions taken by President-elect Trump and his nominee for Attorney General, Senator Jeff Sessions, on (1) medical and recreational marijuana, (2) states’ rights, (3) attitudes toward marijuana use, and (4) enforcement of federal drug laws.
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The Texas Package Stores Association has asked the US Supreme Court (via a “Petition of Certiorari”) to hear a case that could clarify the interaction between the 21st Amendment and the non-discrimination between states principle of the “dormant” Commerce Clause.

The case arose in Texas, where the Court of Appeals for the Fifth Circuit