Attorney general Jeff Sessions' decision to overturn an Obama-era policy that allowed legal marijuana to flourish likely won't make him many friends—certainly not among the 94 percent of Americans who support medical marijuana legalization, the 64 percent who say it should be legal nationwide, the thousands of people currently employed by the legal marijuana industry, the parents of kids whose seizures have been mitigated by cannabis, or even members of his own party, like senator Cory Gardner of Colorado, who accused Sessions of going back on his word to members of Congress.
"This is about a decision by the state of Colorado, and we were told that states’ rights would be protected,” Gardner said in an impassioned speech Thursday on the Senate floor.
But while Sessions may not win any popularity contests in Boulder any time soon, the entrepreneurs and investors fueling the legal marijuana boom of the past few years remain, well, pretty chill about the whole thing. Yes, Sessions has rolled back the Obama-era Cole memo, which essentially instructed federal prosecutors to deprioritize marijuana crimes in states where it's legal. That's a setback. But in practice, legal weed purveyors see the move as unlikely to be as disastrous for their businesses—and their customers and patients—as many expect.
"The public gets a little scared, but the reality is, so far, it means absolutely nothing," says Randy Maslow, cofounder of iAnthus Capital Management, which invests in the cannabis industry.
The Department of Justice's announcement Thursday rescinded all nationwide guidance regarding the enforcement of federal marijuana law. And while that pierces that protective shield around legal marijuana companies in states like Colorado, Washington, and as of earlier this week, California, it does not specifically instruct federal attorneys to go after legal weed.
Maslow, a former lawyer, takes that as a positive sign. Before the Cole memo, he says, federal attorneys mostly left the enforcement of these crimes up to the states. Given the way state governments have come around to marijuana legalization, with 29 states legalizing it in some form or another, Maslow predicts it's unlikely that repealing the Cole memo would suddenly turn law enforcement against the industry, or spur US attorneys to buck the will of their own state governments. Especially when legalized marijuana has brought jobs, tax revenue, and in Colorado, one study found, even a decline in opioid deaths.
"It is extremely unlikely, to put it mildly, that US attorneys are going to go after the good actor, the businesses and customers that adhere strictly to the state’s legal marijuana program," Maslow says. "And the state is not going to devote resources to catching and prosecuting anybody except the same bad actors they were prosecuting before."
If Sessions had wanted to, he could have issued explicit guidance directing federal attorneys to go after legal marijuana businesses. It wouldn't be the first such directive. In May, Sessions explicitly directed federal prosecutors to pursue the strictest sentences possible for all crimes, overturning former attorney general Eric Holder's directive, which urged prosecutors to avoid bringing charges against defendants that would trigger mandatory minimum sentences.
In his memo Thursday, Sessions issued no such directive, which entrepreneurs in the space view as a promising sign. "I think it’s a lot more nuanced than saying this is going to kill all cannabis," says Micah Tapman, managing director of Canopy, an accelerator and venture capital firm for cannabis startups.
Still, those entrepreneurs who can are readying a backup plan. Jon Vaught, CEO of Front Range BioSciences, launched his Colorado-based business two years ago. An organic chemist by background, Vaught started the company with the goal of bringing the same tests and technology that ensure health and safety in the food and drug industries to cannabis. "[Legalization] opened the door to companies like ours to create safety in the marketplace," Vaught says.
And yet, he's all too aware of the risks associated with running such a business under a Sessions-led Department of Justice. Sessions was once famously quoted, after all, saying that "good people don't smoke marijuana." That's one reason why Vaught is eyeing partnerships in more cannabis-friendly countries, including Canada, Israel, and Australia. He's also working on applying his technology to other crops.
"For us, the future is still very bright," he says. "There’s a lot of work to do, whether or not the US tries to slow us down here at home."
It is, of course, in the best interest of all of these businesses to keep faith alive. And not all legalization advocates are so certain that Sessions has, in fact, taken a light-handed approach with this announcement.
"It’s a very different context now. I wouldn’t make any assumptions," says Maria McFarland Sanchez-Moreno, executive director of the Drug Policy Alliance. Just this week, Sessions appointed 17 interim US attorneys. The country has 93 overall, who serve terms of at least four years. It's unclear, McFarland says, whether their feelings about marijuana legalization mirror Sessions' own, or whether they'll feel compelled to follow his lead.
"This may not be an order for prosecutors to go after legal marijuana, but it is a very clear signal that's where Session would like them to go," she says. "US attorneys who agree may well act on it." If they do, she adds, that could have a chilling effect on innovation and competition in the industry, particularly in states where that industry is brand new.
For now, businesses will have to watch and wait. Meanwhile, McFarland encourages members of the public who oppose Sessions' decision to make their voices heard in Congress. As part of its spending bill, Congress still needs to renew the so-called Rohrabacher-Farr amendment, which prevents the Justice Department from spending money to prosecute medical marijuana cases. McFarland says people should not only tell their representatives to protect the amendment, but also to pass similar protections for all legal marijuana. "We know marijuana is an issue that draws bipartisan support," McFarland says. "Now that marijuana is under threat, you could see even more movement."
Gardner promises to lead the fight, tweeting Thursday that he is "prepared to take all steps necessary, including holding DOJ nominees" until Sessions lives up to his promise not to "[trample] on the will of the voters in Colorado and other states."
It's not often that congressional Republicans and West Coast hippies find themselves on the same side of an issue. No wonder the industry sees reason to hope.
