Former Deputy Attorney General James Cole wasn’t especially surprised when he learned earlier this year that Attorney General Jeff Sessions rescinded his 2013 landmark namesake memo that provided guidance to U.S. attorneys on marijuana enforcement priorities. But he’s also skeptical that the policy regression will stand the test of time.
In a phone interview with Marijuana Moment, Cole discussed how the memo came to fruition (he conversed with President Barack Obama during the drafting, but declined to comment on the substance of those conversations), the future of cannabis policy in the United States and how, contrary to Sessions’s past statements, good people do smoke marijuana.
Cole, who will be a keynote speaker at the National Cannabis Industry Association’s Cannabis Business Summit & Expo later this month, is currently a partner at the law firm Sidley Austin LLP.
This interview has been lightly edited for length and clarity.
Marijuana Moment: Can you describe your reaction after hearing that Jeff Sessions rescinded your memo?
James Cole: I was not completely surprised. Certainly, the attorney general had expressed his views about marijuana and the marijuana industry. He had also, however, expressed views that he thought that the memo did a pretty good job of trying to rectify and regulate a difficult area because of the legal complications of it.
As to his reasons that it was unnecessary, I didn’t agree with that. I thought that, in fact, it was necessary. My concern in drafting the memo was public safety and trying to make sure that, accepting the fact that marijuana was going to be used on an increasing basis based on the resolutions in the states, you wanted to keep the cartels and the gangs out of it. And the best way to do that was by providing a regulatory scheme that would allow legitimate businesses that are well-regulated to exist so they can comply with the law, so that any revenue that may be generated can be brought into the state coffers, so that the enforcement of the regulations can be funded.
It just seemed to me that certainty being the hallmark of any business, the uniformity of the policy throughout the United States was a necessary element. Right now you’ve got 93 different U.S. attorneys who are given the discretion to decide what to do, and that does not bring certainty or uniformity. Whether there will be a change of enforcement activity, I don’t know. There’s certainly a change in policy and there’s certainly less comfort in the industry about what to do.
MM: On that last point, it doesn’t appear that there’s been a lot of eagerness on the part of federal prosecutors to crack down on the legal marijuana industry since the memo was rescinded. What do you make of that?
JC: I think some of it is a political reality. In the states that have legalized marijuana, obviously U.S. attorneys—although a lot of them are not permanently appointed, many are just acting at this point—they are political creatures. They are politically appointed in one form or another, and many times they look at being a U.S. attorney as a political stepping stone. So I think they’re responsive to what the political will is in the states where they reside.
That’s one of the realities that really enters into the enforcement mechanism. Is this really a place to use the resources of the federal government or not? The concerns that come in that jurisdiction can be vast and wide, and you may have a U.S. attorney in one jurisdiction—one that doesn’t have legalization—reaching out into a jurisdiction that does have legalization because there’s some kind of jurisdiction hook. I haven’t seen that yet. I don’t know if that’s ever going to happen, but that could be one of the concerns. At the end of the day, the rescission of the memo may prove to be more symbolic than it is substantive.
MM: When you started drafting the memo, were you having conversations about the issue with President Obama or White House staffers?
MM: Can you speak to the nature of those conversations?
JC: No, I cannot. No, I don’t talk about my conversations with the president.
MM: What would you tell marijuana business owners concerned about the possibility of a federal crackdown?
JC: Obviously, in most jurisdictions, lawyers are limited in what kind of advice they can give in this space because it is illegal under federal law. So we can advise quite easily about whether or not a particular course of conduct that somebody wants to take is legal or not. We can advise on what we believe the Department of Justice enforcement policy is—it’s a little less certain than it used to be. We can advise on what other laws come into play.
But ultimately, it comes down to a risk appetite for most companies that want to operate here as to whether or not they will accept a level of risk that whatever they’re doing may get prosecuted with whatever comes with that—which is both the threat of fines, maybe imprisonment, perhaps forfeiture.
MM: Do you feel that federal marijuana legalization is an inevitability?
JC: I believe it is. I look at the new [congressional] legislation that’s been proposed, which is, I believe, simple and straightforward. I think Congress is where the activity needs to take place. I think it is moving toward that. There’s growing acceptance of it. I think it’s a matter of ‘when’ and not ‘if’ at this point.
MM: Are there good people who smoke marijuana, contrary to what Sessions has said in the past?
JC: Yes, there are. There are. There are cancer patients, there are people with glaucoma, who get palliative effects from smoking marijuana. I wouldn’t call them bad people. I disagree with that.
Photo courtesy of the Department of Justice.
Hemp Will Be A Top 10 Product In 2019, Whole Foods Predicts
The gurus at Whole Foods Market have spoken: hemp products, already incredibly popular, will be a top 10 food trend in 2019.
In a press release, the company said it relied on “seasoned trend-spotters” who have “more than 100 years of combined experience in product sourcing, studying consumer preferences and participating in food and wellness industry exhibitions worldwide,” to compile its new report on what to expect next year.
So what will be flying off the shelves in 2019? According to the experts, lots and lots of hemp.
“Hemp hearts, seeds and oils are nothing new to food and body care lovers—they’re in everything from waffle mix to dried pastas,” the company wrote. “But a new interest in the potential benefits stemming from other parts of hemp plants has many brands looking to explore the booming cannabis biz.”
“While CBD oil is still technically taboo (prohibited in food, body care and dietary supplements under federal law), retailers, culinary experts and consumers can’t miss the cannabis craze when visiting food industry trade shows, food innovators conferences or even local farmers markets.”
(For the record, there’s a lot of confusion and disagreement about the federal legality of hemp-derived CBD oil, which you can read more about here.)
The trend won’t stop at CBD, either. Apparently phytocannabinoids, those compounds that are present in cannabis but also in other plants, are “becoming more visible and prevalent.”
“It’s clear that hemp-derived products are going mainstream, if not by wide distribution, then by word of mouth!”
Hemp products that the trend-spotters recommended include a line of health supplements containing phytocannabinoids, a face cream comprised of hemp stem cells and organic shelled hemp seeds.
While cultivating marijuana’s non-intoxicating cousin is currently illegal in the U.S. outside of exceptions for state-approved hemp research programs authorized under the 2014 Farm Bill, there’s a strong possibility that industrial hemp will be broadly legalized—possibly by the end of the year—once the House and Senate reconcile their versions of a new Farm Bill and put it on the president’s desk.
Senate Majority Leader Mitch McConnell (R-KY), who introduced the provision, issued a “guarantee” last week that hemp legalization will be included in the final legislation.
That would give the hemp business an even greater boost going into the new year.
Photo courtesy of Brendan Cleak.
Washington Still Doesn’t Know What Good Marijuana Is (Or How To Test For It)
Retail sales of legal marijuana have been underway in Washington state for more than four years—and state regulators in charge of quality control still aren’t sure what good cannabis is, or how to test for it.
All product sold in stores is supposed to be tested for mold, pesticides and other contaminants by labs evaluated and accredited by a private company under contract.
That will change sometime soon. The Washington State Liquor and Cannabis Board, which regulates marijuana sales, has until January 15 to come up with recommendations for how the state should begin accrediting testing labs.
But in order to do that, regulators—or state lawmakers, or both—have to decide what, exactly, makes good weed. And nobody—not in Washington state, nor elsewhere in the U.S. where marijuana is legal—can seem to agree what that is, according to a draft government report posted online Thursday.
“Current quality standards… are insufficient to support a robust, science-based cannabis laboratory accreditation program,” the Washington Department of Ecology document says.
A “Cannabis Science Workgroup” comprised of experts in chemistry, biology, medicine and other fields to determine minimum standards for cannabis quality should be formed, wrote Sara Sekerak, a senior chemist and project manager at the department.
To reach this determination, researchers with the agency reviewed quality-control standards in four states. They found that “[w]idely accepted quality standards for testing cannabis and cannabis products do not yet exist.”
“Accreditation does not designate product standards or quality standards,” the report adds. “However, these are necessary to support meaningful accreditation.”
Eventually, testing labs in Washington will be accredited by a state agency. Until that happens, quality may remain erratic.
Because of weak or nonexistent state rules, labs “are allowed to design their own levels” of quality control and quality assurance. There are no readily available samples of agreed-upon “quality” cannabis to set a basic standard by, as there is for drinking water and other consumer goods.
Untrained workers collecting samples for testing may taint the samples. And current accreditation standards applied by the International Organization for Standardization (ISO) are not sufficient, the report found.
New York Liquor Stores Want To Sell Marijuana
Instead of creating a whole new system of specialized stores to distribute marijuana when it becomes legal, New York should just allow existing liquor and wine retail outlets to sell cannabis to adults. That’s the position of a new advocacy effort launched by owners of booze shops this month.
“With more than 2,000 wine and liquor stores from Buffalo to Montauk, we offer existing retail space with quick and cheap access to the market in every corner of the state,” reads the website for the group, which is called The Last Store on Main Street. “That means more tax revenue, and sooner, for the State to fulfill basic responsibilities and invest in the future of our neighborhoods.”
The group, which previously defeated an effort to allow wine sales in grocery stores, says that its members shops “operate under a highly regulated system that can easily and reasonably be expanded to cover marijuana retail without building new bureaucracy that only serves to eat into the tax revenues the industry creates.”
Jeff Saunders, the group’s founder, said alcohol retailers are worried that unless they are allowed to sell cannabis, their revenues could suffer.
“Recreational marijuana sales have resulted in significant declines in wine and liquor sales in other states, resulting in job loss and even stores closing,” he said, according to the news outlet New York Upstate.
On the group’s website, New Yorkers who agree with the goal of allowing weed sales in liquor stores can send prewritten letters to their state lawmakers that describe the move an “obvious win-win opportunity for a bedrock industry of New York’s Main Street economies and the future of our state.”
The effort to shape how legalization could roll out comes as the administration of Gov. Andrew Cuomo (D) is taking steps to bring about the end of marijuana prohibition.
Earlier this year, Cuomo directed the state Health Department to study legalizing marijuana, a move that led to a report that found that doing so would have more benefits than risks.
State officials are conducting a series of listening sessions around the state on the topic, and the governor created a task force to draft legalization legislation that lawmakers can consider in 2019.
Meanwhile, lawmakers are already holding hearings on ways to end cannabis prohibition.
Photo courtesy of Marilyn Acosta.