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June 04, 2020

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War on Weed: AG Jeff Sessions Creates Reefer Madness

Attorney General Jeff Sessions has caused chaos in the marijuana industry and is forcing those who have made efforts to create legalized businesses in compliance with state laws to ponder whether their anticipated profits will go up in smoke. In a memo to all U.S. attorneys, Sessions rescinded Obama-era decrees that restrained prosecutors from enforcing federal drug laws in states that acted to legalize marijuana under their own laws. The decrees created an environment in which states felt they had the freedom to legalize marijuana without interference from federal authorities. Nonetheless, all aspects of the marijuana industry – for example, growing, manufacturing related products, distributing, advertising, and managing property used to grow, manufacture or distribute marijuana – have remained illegal. The updated guidance from Sessions now encourages federal prosecutors to resume enforcing these laws.

It is no coincidence that Sessions, a longtime opponent of the legalization of marijuana for recreational use, issued his guidance just days after California allowed recreational marijuana businesses to open their doors. Those who follow this issue know Sessions also has his sights set on enforcing federal drug laws against those engaged in the medical marijuana industry. Sessions requested Congress remove a budgetary provision currently prohibiting the Department of Justice (DOJ) from using funds to “prevent certain states ‘from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana[.]’”[1]

This new guidance highlights the conflict that exists between federal law and the laws of state, local and tribal governments that have seemingly legalized marijuana both recreationally and medically. This should be cause for concern for those involved in the marijuana industry. Federal drug laws prevail over the comparable laws of states, cities and tribal communities; so, compliance with those laws is not a defense to the violation of federal laws prohibiting every aspect of the fast-growing marijuana industry. A key factor for its future is what happens to the Rohrabacher-Blumenauer Amendment, also known as the Rohrabacher-Farr Amendment, which prohibits the DOJ from spending federal funds to interfere with state medical marijuana laws. The law will expire on January 19 absent its annual re-authorization from Congress.

Ultimately, the manner in which the guidance from Sessions will be implemented by federal prosecutors around the country is uncertain. However, now that the prosecutors have the freedom and the instruction to enforce the drug laws against the marijuana industry, it is likely they will flex their muscles. This will result in substantially adverse legal and economic consequences for the businesses and individuals engaged in that industry. If you are concerned about the impact this new guidance may have on you, your business or an investment of yours, please contact your Dinsmore attorney. We have many attorneys experienced in this area, including multiple former federal prosecutors, who can assist you with your needs and concerns.

[1] Jeff Sessions’ letter regarding Department of Justice Appropriations is available at https://www.scribd.com/document/351079834/Sessions-Asks-Congress-To-Undo-Medical-Marijuana-Protections.

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About this Author

Robert Marasco, Dinsmore Law Firm, Litigation Attorney

As a former federal prosecutor, Robert brings a unique perspective to his representation of clients. His experience offers clients insight when preparing for a variety of scenarios.

Robert is a partner with the Litigation Department. He counsels corporate and individual clients, including those working through complex internal or government investigations, responding to subpoenas, investigative demands for interviews or those facing criminal prosecution. He handles all aspects of litigation related to these matters as well. He assists clients...

Marissa K. Fenn, Chicago, Associate

Marisa is a member of the firm’s Business, Acquisitions, and Securities Practice Group, within the Corporate Department. Her practice focuses on general commercial, corporate and compliance matters within law, business and government. She is also a certified mediator experienced with alternate dispute resolution and mediating different cases in the Circuit Court of Cook County, Illinois.

She has experience in entity formation, contracts, governance, and corporate actions and documents. In law school she gained experience researching and analyzing complex legal issues—including research for a United Nations Special Rapporteur, drafting state legislative reports for a non-profit, and working in-house at a leading natural gas and electric utility company. Her background and experiences provide the perspective and ability to understand clients’ businesses, assess their needs and give practical counsel on a myriad of issues that affect their day-to-day and impact their future.

Marisa earned her law degree from Northwestern University Pritzker School of Law. During her time at Northwestern, she served as Symposium Editor for the Journal of Law and Social Policy and was involved with a multitude of leadership roles and public-spirited student organizations.

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