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Federal Government Adds Further Haze to Issues Surrounding Legalization of Marijuana

On August 29, 2013, U.S. Attorney General James Cole issued a memorandum (“Memorandum”) to federal prosecutors providing guidance on marijuana enforcement under the federal Controlled Substances Act.

Consistent with the previous limited federal enforcement efforts on users of marijuana for medical purposes, the Memorandum advises that, in states that legalize under state law, “the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale,” federal enforcement efforts should only focus on prosecution of individuals or organizations whose conduct interferes with certain federal priorities.

The Memorandum is solely “intended as a guide to the exercise of investigative and prosecutorial discretion,” but does not alter federal law, including federal laws relating to marijuana.  Consequently, nothing in the Memorandum, nor any state or local law, provides a defense to a violation of the Controlled Substances Act.  Marijuana remains a Schedule I illegal substance under the Controlled Substances Act; thus, while the possession of marijuana may be legal under state law, it is still illegal under federal law.

The federal government previously indicated that its enforcement efforts were not to focus on individuals using marijuana solely for medical purposes.  The Memorandum now expands the scope of limited enforcement efforts to marijuana users in states where marijuana has been legalized under state law.  The Department’s updated guidance relies on the fact that states which authorize production, distribution, and possession of marijuana will enact “strong and effective regulatory and enforcement systems.”

According to the Memorandum, those strong and effective regulatory and enforcement systems should further federal priorities.  “Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.”

Furthermore, the states must provide the necessary resources and demonstrate a willingness to enforce their laws and regulations in a manner that does not undermine federal enforcement priorities.  Even in states with strong and effective regulatory systems, if an individual’s conduct conflicts with the federal enforcement efforts related to marijuana, the individual could still be subject to federal enforcement.

On a related note, one initiative to legalize marijuana and marijuana related activities is pending review by the California Attorney General’s Office.  The Attorney General’s Office will prepare a title and summary for the measure, which proposes to legalize marijuana for people twenty-one years of age and older, authorizes the commercial production of marijuana and recognizes industrial marijuana growers.  If the proponents collect sufficient signatures, the initiative could appear on the November 2014 ballot.