President Trump Expresses Support For Bipartisan Marijuana Fix

DISTRICT OF COLUMBIA: President Donald Trump on Friday publicly expressed support for bi-partisan legislation that seeks to codify legal protections for state-sanctioned marijuana-related activities.

In response to a question from reporters, the President acknowledgedthat he “probably will end up supporting” The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act of 2018, introduced last week by Senators Elizabeth Warren (D-MA) and Cory Gardner (R-CO). Majority Leader Mitch McConnell has also reportedly promised to permit a vote on the legislation.

URGE YOUR FEDERAL LAWMAKERS TO SUPPORT THE STATES ACT OF 2018

The bill mandates that the federal Controlled Substances Act “shall not apply to any person acting in compliance” the marijuana legalization laws of their state. It also amends federal law to explicitly remove industrial hemp from the definition of marijuana. A bipartisan House companion bill, sponsored by Reps. David Joyce (R-OH) and Earl Blumenauer (D-OR), is also pending in the House of Representatives.

In April, Sen. Gardner acknowledged that he had spoken with the President regarding the intent of his bill and that Trump “assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all.”


For more information, contact Justin Strekal, NORML Political Director, at (202) 483-5500.

Trump, Lamestream Media & Cannabis

Donald Trump really hasn’t said much about marijuana as president-elect/president. His administration meanders from strong to modest opposition, depending on who’s talking. This is because cable news is in a nebulous area where media personalities, the president’s staff, channel advertisers, and occasionally everyday people brief Trump from the comfort of his TV. Cannabis, like everything else, is hostage to the news cycle.

White House press secretary Sean Spicer first said the administration was looking at “greater enforcement.” Attorney General Jeff Sessions, and top Justice Dept. advisor, Steven Cook, have a dim view of all criminal justice reforms from the Obama years. They’ve had recent harsh words for legal pot, yet Colorado Gov. John Hickenlooper recently described a meeting with Sessions where the AG stressed the administration’s other priorities over enforcement against legal pot.  “Well you haven’t seen us cracking down, have you?” Sessions reportedly told the governor.

Still, a Justice Dept. review of the non-legally-binding Cole memo, which outlined expectations of state legalization in 2013, is said to be underway. Trump’s early executive order on crime was mostly a call to review and enforce laws against drug trafficking and criminal organizations, with no new authority or money to fight pot.

As a candidate Trump said he was 100% supportive of medical cannabis, as president that support has shown itself to barely be barely 50% in maintaining a status quo with HHS Secretary Tom Price, formerly a not-totally-anti-medical-cannabis congressman from Georgia and the continuation of the Rohrabacher-Blumenauer budget amendment which blocks DEA spending on state-compliant medical cannabis laws until September. And Trump’s Alcohol, Tobacco, Firearms, and Explosives agency has expanded Form 4473 for gun sales to make clear that no legal marijuana consumers, medical or otherwise, has 2nd amendment rights.

Then, Trump’s White House proposed to gut the ONDCP, or drug czar’s office, budget by over 90% while establishing an special commission to examine the opioid epidemic headed by New Jersey’s “smoke ‘em while you got ‘em” Gov. Chris Christie, perhaps the most specifically anti-pot member of the Trump team, yet also the farthest from controlling that federal weed policy. What does all of this mean?

President Trump listens to these men, and others, on marijuana policy. However, their views on weed played little role in their ascendence in his government as opposed to their outright loyalty and deference to Trump himself. He doesn’t keep them around because he agrees with their extremist views on pot. But he listens to one advisor above all else: Cable news. As much as he may say he hates it, mainstream media is the central issue brief for America’s president, academics and political research filling in the rest (probably). Evidence abounds…

“As president, Trump has quite patently gathered his cues from cable shows, and the evidence surfaces in his Twitter account. Analysts have taken to tracing the substance of his tweets to programming moments on CNN or Fox News.”

“Some White House officials — who early on would appear on TV to emphasize points to their boss, who was likely to be watching just steps away in his residence — have started tuning into Fox News’ “Fox & Friends” because they know the president habitually clicks it on after waking near dawn.” – Erik Wemple/Ashley Parker The Washington Post

“White House staff have learned to cater to the president’s image obsession by presenting decisions in terms of how they’ll play in the press.” -Josh Dawsey, Politico

“MSNBC and Fox News are cashing in on Trump’s viewing habits, reportedly hiking up ad rates in February “as companies and outside groups try to influence Trump and his top lieutenants” through ads on his favorite networks.” -Elaine Godfrey, The Atlantic

Trump wants all his weed policies to be broadly popular and perceived as the strongest and best. That’s not news. What is news is that press briefings, media surrogates, and high ranking government officials used to be reliable attempts to describe an administration’s decided drug policy. Now, they’re active arguments to the president regarding an undecided one.

Used to be, federal pot statements were carefully orchestrated and approved soundbytes. Now, they’re often jockeying for future validation for putting on a popular show. It’s depressing, but cannabis is no third rail in getting this treatment, healthcare, taxes, immigration, civil rights, foreign affairs and been treated similarly.

So media around cannabis laws is more crucial than ever both for influencing the commander-n-chief, feeling out his staff’s arguments, and judging individual players overall influence. This ranges from dramatic reports of arrests and injury, to human interest pieces on patients in need or entrepreneurial green businesses. Cannabis law reformers talking to the press better behave, the president might be watching. For the public, this results in a type of “read between the lines” comprehension of news that reformers have long engaged in when judging media veracity, but is becoming a mainstream lenses for the public.

In last month’s budget debate, the White House did little to stop the Rohrabacher-Blumenauer amendment protecting state medical marijuana programs, with Trump later asserting his ability to enforce constitutional duties even with that amendment on the books in the law’s signing statement. Some news outlets immediately interpreted this as a warning shot to medical patients. In all likelihood, the president wants flexibility and firmness simultaneously, and his discretion on this and many other parts of the budget strongly keep his options and opinions amorphous. Its disappointing because he had the opportunity to lead a conversation on individual rights, safety, and economic instead of perpetually reacting to it.

A lot of people know not to trust everything they hear on TV, and as an internet commentator, I’m not saying otherwise. But, knowing what and how pot is being talking about on MSNBC, CNN, and Fox is not a sign of being duped by “lamestream news” so much as trying to understand pot’s portrayal to the president at any given moment. During the campaign, Trump promised to keep the country in suspense on whether or not he’d accept election results. On cannabis at least, that promise has been kept.

If President Trump was going to war with legal pot, he won’t hesitate to tweet it. You don’t have to like every CNN commentator or Fox & Friends to contact them and share your support for legal weed. Until then, follow cannabis in the news without obsessing over it. Our president has that covered.

 

What Would “Greater Enforcement” Mean for Washington’s Cannabis Businesses?

Justice Department has options to crack down, but may galvanize the push for even wider legalization

By Andy Aley

WASHINGTON: In statements that were perhaps inevitable but nonetheless surprising to the cannabis industry, White House Press Secretary Sean Spicer on February 23, 2017, provided the first official comments on how the Trump administration may address recreational marijuana.

Responding to a question from an Arkansas reporter regarding medical marijuana, Spicer indicated that the Trump administration sees “a big difference” between medical and recreational marijuana, stating that federal law needs to be followed “when it comes to recreational marijuana and other drugs of that nature.”

Spicer also indicated that enforcement decisions will primarily be a Department of Justice (“DOJ”) matter, stating that enforcement is “a question for the Department of Justice,” but that he believed there would be “greater enforcement of [federal law], because again, there’s a big difference between medical use, which Congress has, through an appropriations rider in 2014, made very clear what their intent was on how the Department of Justice would handle that issue,” which, Spicer stated, is “very different from the recreational use, which is something the Department of Justice will be further looking into.”

Although Spicer’s statements should probably not be considered as the Trump administration’s definitive policy statement on recreational marijuana use, they do raise a variety of concerns for cannabis businesses.

A New Direction for the Department of Justice

The August 29, 2013 DOJ Memorandum (the “Cole Memo”) is the closest thing the cannabis industry has to an official federal policy statement on DOJ’s enforcement of the Controlled Substances Act (“CSA”) in states that have legalized the possession, production, processing and sale of marijuana.

The Cole Memo is well-known throughout the cannabis industry, but to recap, it is essentially soft guidance to federal prosecutors regarding DOJ’s view on the appropriate allocation of federal resources regarding enforcement of the CSA.

The Cole Memo outlines eight general federal enforcement priorities related to marijuana in states in which it has been legalized, and notes that these enforcement priorities are less likely to be threatened in states with “strong and effective regulatory and enforcement systems to control the medical and commercial cultivation, distribution, sale, and possession of marijuana . . . .”  In these situations, the Cole Memo provides guidance to federal prosecutors that “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.”

The Cole Memo is, however, non-binding, and expressly states that it is “intended solely as a guide to the exercise of investigative and prosecutorial discretion” and does not provide “a legal defense to a violation of federal law, including any civil or criminal violation of the CSA.”  This means that DOJ is free to reverse course and begin enforcement actions related to CSA violations in states that have legalized marijuana.  The appointment and subsequent confirmation of Attorney General Jeff Sessions, who has been an outspoken critic of marijuana use, raised the possibility of a change within DOJ.

Spicer’s recent statements indicate that Attorney General Sessions would be free to pursue a policy change without interference from the White House.

Exactly what that change would look like remains uncertain, but keep in mind that despite state-level legalization, marijuana remains a Schedule I controlled substance under the CSA, and the federal government can seize, and seek the civil forfeiture of, real or personal property used to facilitate the sale of marijuana, as well as money or other proceeds derived from such sales.  In addition, there is potential risk of criminal investigation or prosecution for aiding and abetting violation of the CSA or for conspiring to violate the CSA.

DOJ’s best, and perhaps most likely to be used, enforcement actions are criminal prosecutions and civil forfeiture cases brought against individuals and businesses directly participating in the cannabis industry (producers, processors and retailers).  Those actions are simple to implement, as DOJ simply needs to allow Drug Enforcement Agency agents to conduct investigations of and/or raids on producers, processors and retailers, then tell federal prosecutors that they are free to seek the indictment of these individuals and businesses for violating federal law.

The Distinction Between Medical and Recreational Marijuana is Critical – For Now

Spicer’s statements also highlight the “big difference” between how the Trump administration views medical and recreational marijuana.  This view is reflected in federal law, which currently grants limited protection to medical marijuana users and, by implication producers, processors and retailers.  The “Rohrabacher-Farr Amendment”, which is a rider to the federal spending bill currently in effect, prohibits DOJ from spending funds to prevent states’ implementation of their medical marijuana laws.  In United States v. McIntosh,a 2016 case, the Ninth Circuit Court of Appeals held that this rider “prohibits DOJ from spending money on actions that prevent the [states listed in the rider from] giving practical effect to their state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

The Ninth Circuit rejected a broader argument that the rider prohibits DOJ from bringing federal charges against anyone licensed or authorized under a state medical marijuana law for activities occurring in that state, including situations where those activities do not fully comply with state law.  The court determined the rider “prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana,” and that DOJ does not “prevent the implementation” of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws.

Accordingly, prosecuting individuals who do not strictly comply with all state-law requirements applicable to medical marijuana remains permissible.  For cannabis businesses engaged in the production, processing or sale of medical marijuana, having robust policies and procedures in place to ensure compliance with state law is critically important.

Also notable is that the current federal spending bill expires on April 28, 2017.  If the current bill is not extended, or if this rider is not included in the next spending bill, this protection will be lost and all marijuana industry participants will be again exposed to the risk of federal criminal prosecution and civil forfeiture actions, in addition to other enforcement actions.

There is also ambiguity in states, such as Washington, with overlap between the medical and recreational laws.  In July 2016, Washington’s previously unregulated medical marijuana market was integrated into the regulated recreational marijuana market, with new laws taking effect that focused on creating a patient authorization database, a consultant certification program and a certification for “compliant products” for medical use.

Under Washington state law, participation in these medical marijuana programs is essentially voluntary.  Medical marijuana patients in Washington are not required to participate in the patient database, and producers and processors are not required to obtain “compliant product” certifications from the Washington State Department of Health.  Many producers and processors have not sought this certification due to the increased product testing and compliance costs, and many medical marijuana patients have refused to register for the patient authorization database due to privacy concerns.  Given the current landscape, however, cannabis businesses may want to reconsider their participation in state medical marijuana programs.

The Need for a Congressional Solution

Spicer’s comments should also serve as a reminder that the status quo – that is, DOJ’s discretionary decision to not enforce federal law against state-sanctioned marijuana activities – is not viable as a long-term solution for the industry.  Spicer’s statements are at odds with polling data on legalization of marijuana, with an October 2016 Gallup poll indicating that 60 percent of Americans support legalization, and a February 23, 2017 Quinnipiac University poll indicating that 71 percent of Americans (including majorities of both Democrats and Republican voters and in every age group) believe that the federal government should not enforce federal laws against marijuana in states that have legalized recreational or medical marijuana.

A renewed focus on federal enforcement is also certain to trigger resistance from states such as Washington, Colorado and Oregon that have seen positive economic benefits from marijuana regulation.  Since regulated sales began in Washington in 2014, the state has collected approximately $430M in additional tax revenue.  Fiscal year 2017 tax revenue in Washington alone is projected at $272M.  It is difficult to envision states willingly giving up this tax revenue while disregarding the will of their voters.

Indeed, earlier this month, amid uncertainty over the Trump administration’s approach to cannabis laws, Washington Attorney General Bob Ferguson and Governor Jay Inslee wrote to Attorney General Sessions asking that the guidance in the Cole Memo be maintained, and that any changes to the policy be coordinated closely with states that have established cannabis markets.  Ferguson has already responded to Spicer’s statements, stating in an interview that he intends to resist any efforts by the Trump administration to interfere with Washington’s regulated marijuana market.

Taking a “glass half-full” approach, Spicer’s statements could be what it takes to galvanize public support around re-scheduling or de-scheduling marijuana and to finding a viable long-term solution to the industry.  Industry participants and other stakeholders have an opportunity to use this potential shake-up to the status quo as an effective lobbying strategy in order to convince Congress that a well-regulated industry operating in the light with substantial state oversight is a better outcome, both economically and socially, than pushing it back toward an unregulated black market.

 Andy Aley is  co-chair of Garvey Schubert Barer’s cannabis practice

 

MPP Statement Regarding the Nomination of Sen. Jeff Sessions for U.S. Attorney General

DISTRICT OF COLUMBIA: The Marijuana Policy Project released the following statement Friday in response to President-elect Donald Trump’s announcement that he plans to nominate Sen. Jeff Sessions (R-Ala.) as attorney general.

Statement from MPP Director of Communications Mason Tvert:

“President-elect Trump has said on multiple occasions that he respects states’ right to establish their own marijuana policies. We would expect appointees who serve at the pleasure of the president to stick to the president’s position on this subject. It would certainly be controversial if Sen. Sessions completely defied the president who appointed him.

“The vast majority of Americans agree with President-elect Trump’s position that marijuana policy should largely be left to the states. A huge majority of voters share Trumps support for legal access to medical marijuana, and a steadily growing majority believes marijuana should be legal for adults. We remain hopeful that the incoming administration will refrain from interfering in state laws that were adopted by voters or their elected representatives in order to control marijuana and improve the health and safety of their communities. 

“There is a large and growing sentiment in Congress and among the American public that our federal government should not be wasting tax dollars enforcing failed marijuana prohibition laws. We hope Sen. Sessions or whoever is confirmed as our next attorney general will use federal law enforcement resources to protect our country’s citizens, not to defy the laws those citizens have adopted.”

The Wink In Weed: 2016 Elections, A WTF Moment

By David Rheins

It is the morning after the 2016 elections and I’m still having a WTF moment.  I did not expect to be waking up to a President Trump, and the notion of The Donald as our Commander In Chief for the next four years seems more than a little surreal.

But despite the disappointing news, last night was a clear victory for those of us in legal cannabis.  Like most of my peers, I am excited to see the marijuana reform movement achieve critical mass, even as I remain unsure of what sort of Federal Drug Policy a Trump administration might take, given likely prominent roles by prohibitionists Chris Christie and Rudy Giuliani.

Overwhelming, ‘we the people’ have voted for legal cannabis. History was made last night, as the country added 4 new adult-use marijuana states – California, Nevada, Maine and Massachusetts – doubling the total to 8 states plus D.C. and affirming once and for all that the public has had enough of the failed War on Drugs.

2016 Election Night NORML Women of Washington Fundraiser

2016 Election Night NORML Women of Washington Fundraiser

With the entire Pacific corridor now a legal cannabis zone, federal enforcement of prohibition becomes “untenable” President Obama recently told HBO’s Bill Maher. However, that doesn’t mean that a conservative administration won’t make life more difficult for legal cannabis states to create and maintain regulated legal markets.

Many remain nervous. A cannabis attorney I spoke with this morning suggested that this election could mean huge changes to his business, and could easily dampen the growth of the budding industry that he and his firm have helped to create.

At a NORML Women of Washington fundraiser last night, dozens of industry folks gathered to watch the election results.  Many were shocked by the rejection of Hillary Clinton, and feared what it might mean to hard-fought victories of women and minority communities.   “Although I am happy about the major advances for marijuana legalization that happened all over the country last night, and what that means for my company and our culture, it is impossible for me to celebrate as I have never felt so devalued as a woman,” Cannabis Basics’ CEO Ah Warner told MJNN. “The fact that quite possibly the most qualified candidate ever lost her bid for the Oval to the personification of celebrity, bigotry, misogyny and greed is a devastating wakeup call about who we really are as a country. My heart bleeds for the women, no matter what their accomplishments, who will go to their graves knowing that they were never more than second class citizens.”

Others are optimistic about the economic opportunity of the expanding legal marketplace. “My business just got better,” a cannabis media executive told me. “Eight new markets just opened up. Think of all the new brands that need building, all the companies who will need our expertise and advice. I’m excited! We’re ratcheting our industry up to the next level.”

For while voters soundly rejected Hillary Clinton and the political status quo, Republicans, Democrats and Independents alike overwhelmingly embraced legal weed. The legal cannabis genie is out of the bottle as the topic of legalization take its rightful place on the centerstage of political discourse, creating a dissonance between federal and state law that will force a change in federal marijuana policy.

What began as an “experiment” in Colorado and Washington just four years ago has now spread from coast to coast, in red states and blue states. Last night’s election was a victory for America’s fastest growing industry – and it will certainly mean new interest, investment and acceptance.