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James Cole Talks Jeff Sessions And Marijuana Legalization

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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General James Cole wasn’t especially surprised when he learned earlier this year that Attorney General Jeff Sessions rescinded his 2013 landmark namesake memo that provided guidance to U.S. attorneys on marijuana enforcement priorities.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Marijuana Moment: Can you describe your reaction after hearing that Jeff Sessions rescinded your memo?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?

JC: Yes.

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.

Analysis: GOP Congress Has Blocked Dozens Of Marijuana Amendments

Photo courtesy of the Department of Justice

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Los Angeles-based associate editor. His work has also appeared in High Times, VICE and attn.

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Marijuana Banking Bill Gains Momentum With One-Third Of Senate Now Signed On

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The most cannabis-friendly Congress in history is back from its August recess, and lawmakers are already making key moves to advance marijuana reform legislation. The immediate focus is on a proposal to let banks serve cannabis companies without fear of being punished by federal regulators—with House leaders announcing that a floor vote is expected by the end of the month.

On Monday, the Senate version of the marijuana financial services bill got its 33rd cosponsor—Sen. Tina Smith (D-MN)—meaning that virtually a third of the chamber is now formally signed onto the legislation, counting its main sponsor Sen. Jeff Merkley (D-OR).

Please visit Forbes to read the rest of this piece.

(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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Feds Warn More CBD Companies Over Health Claims

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The Federal Trade Commission (FTC) sent letters on Tuesday ordering three companies to stop making unfounded health claims about their CBD products.

“It is illegal to advertise that a product can prevent, treat, or cure human disease without competent and reliable scientific evidence to support such claims,” FTC said in a press release about the action.

Though the agency did not name the three companies that received letters, it described their claims.

One firm said on its website that CBD “works like magic” to relieve “even the most agonizing pain” and has been “clinically proven” to treat cancer, Alzheimer’s disease, multiple sclerosis, fibromyalgia, cigarette addiction and colitis.

Another company claimed CBD is a “miracle pain remedy” that can also treat treat autism, anorexia, bipolar disorder, post-traumatic stress disorder, schizophrenia, anxiety, depression, Lou Gehrig’s Disease (ALS), stroke, Parkinson’s disease, epilepsy, traumatic brain injuries, diabetes, Crohn’s disease, psoriasis and AIDS.

A third CBD provider sold cannabidiol-infused gummies that it said can treat “the root cause of most major degenerative diseases, including arthritis, heart disease, fibromyalgia, cancer, asthma, and a wide spectrum of autoimmune disorders,” according to FTC.

The agency is directing the companies to reply within 15 days with information about steps they have taken to address potential violations of the law, which could lead to injunctions and orders to refund money to consumers.

The latest actions follow several other steps the federal government has taken to push back on marketplace claims about CBD.

In March, FTC and the Food and Drug Administration (FDA) teamed up to send a previous round of letters to three companies for potentially making false or unsubstantiated health claims about their CBD products. In July, FDA issued a warning letter to Curaleaf Inc. about what the agency said were “unsubstantiated claims” the company made about cannabidiol products on its website.

Hemp and its derivatives, including CBD, were legalized under the Farm Bill that was enacted late last year but FDA has not yet created a process to approve the use of the compound in food products or dietary supplements.

Preliminary research has indicated that CBD has the potential to help people struggling with substance use disorders involving alcohol, opioids and stimulants, but to date it has only been federally approved to treat severe seizure disorders in the form of the prescription medication Epidiolex.

“Before making claims about purported health effects of CBD products, advertisers need sound science to support their statements,” FTC wrote in a blog post. “The takeaway tip for anyone in the industry is that established FTC substantiation standards apply when advertisers make health-related representations for CBD products.”

A separate FTC consumer advisory urges people to “talk with your doctor before you try a healthcare product you find online” and “find out about the product’s risks, side effects, and possible interactions with any medications you’re taking.”

This piece was first published by Forbes.

Photo by Kimzy Nanney.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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Colorado Sold Twice As Much Recreational Marijuana As Medical Cannabis Last Year

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The share of legal marijuana sales in Colorado that came from the recreational market in 2018 significantly outpaced those from the medical market, according to an annual government report released on Monday.

In fact, there were about two times as many adult-use sales of flower compared to medical cannabis purchases—a new milestone for the state.

Colorado’s Marijuana Enforcement Division (MED) said that 288,292 pounds of bud were sold last year for recreational purposes, while 147,863 pounds were sold to medical marijuana patients. For comparison, in 2017, recreational consumers purchased 238,149 pounds and 172,994 pounds were sold to patients.

That means the recreational-medical gap increased 73 percent in one year.

Via MED.

Overall, 436,155 pounds of cannabis were sold in 2018, compared to 411,143 pounds in 2017.

In part, the trend can be attributed to the ongoing expansion of Colorado’s adult-use cannabis market since the state’s first recreational shops opened in 2014. Medical cannabis sales were notably higher than recreational sales in that first year of implementation, with just 38,660 pounds coming from the adult-use market and 109,578 pounds being sold to medical patients.

Medical and adult-use sales were roughly even in 2016. But by 2017, recreational sales accounted for 58 percent of the market. And last year, they represented 66 percent of the market.

MED also found that licenses for recreational marijuana facilities increased by three percent (47 licenses) while medical business licenses declined by eight percent (77 licenses).

Via MED.

“Data collection continues to be a priority at the MED,” Jim Burack, director of the program, said in a press release. “This ongoing analysis and compilation of industry information helps inform the public and contributes to our outreach efforts to stakeholders.”

The report also showed that the adult-use market is the primary destination for individuals purchasing edibles. Eighty-six percent of edible sales came from recreational consumers. And from July-December 2018, 75 percent of cannabis plants were cultivated for adult use.

The market shift isn’t unique to Colorado. An Associated Press analysis from June detailed how states across the country that have established recreational marijuana programs are seeing the number of medical patients decline as more consumers transition to the adult-use market.

That may be partially explained by individuals who sought out medical cannabis recommendations choosing not to renew their registration after recreational marijuana shops became available. To that point, a recent study found that many customers at recreational dispensaries are consuming cannabis for the same reasons that registered patients do, such as to alleviate pain and sleep issues.

The concern for some advocates, however, is that adult-use legalization could drive up prices for patients, or leave them with fewer product options tailored to therapeutic use as demand for high-THC products increases.

“When states pass adult-use legalization we are seeing many patients leave the strict controls of the medical programs,” David Mangone, director of government affairs at Americans for Safe Access, told Marijuana Moment. “Patients must already pay out of pocket for cannabis, and any added cost like a registration fee for a medical card or renewal can make the process of obtaining medicine extremely burdensome and costly.”

“States like Colorado must continue to provide adequate benefits to patients to ensure the medical program remains robust,” he said.

Mangone added that “as states pass adult-use programs it is important that they continue to understand and appreciate the needs of patients.”

“A common frustration for many is not what happens in terms of access to cannabis, but rather what happens in terms of access to specific products. Products and flower with a high-THC content have a wider market appeal, but may not necessarily benefit the existing medical market.”

That said, one interesting finding from this latest MED report is that medical and recreational consumers alike seem increasingly interested in concentrates, with the units of such products sold to both nearly doubling from 2017 to 2018. Concentrates are sold at a much higher rate in the adult-use market, but the potent products evidently have growing appeal across the board.

Gov. Jared Polis (D) recently celebrated tax earnings from marijuana sales, touting the fact that the state has amassed more than $1 billion in cannabis revenue that has been allocated to various social programs.

And the marijuana market is continuing to evolve in state. Polis signed legislation in May allowing for home deliveries of cannabis products as well as social consumption sites.

The governor said last month at a conference with governors from around the country that the new delivery law could help mitigate impaired driving.

After Legalizing Marijuana, Colorado Saw ‘Significant Decrease’ In Opioid Prescriptions, Study Finds

Photo courtesy of Kimberly Lawson.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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