Attorney General and noted anti-weed crusader Jeff Sessions changed the federal government’s stance on marijuana on Thursday, rescinding five Obama-era memos that encouraged federal prosecutors to take a hands-off approach to the marijuana industry. Under Obama, weed-centered businesses that were abiding by state laws and regulations were more or less left alone, a policy that contributed to legal marijuana becoming the fastest-growing industry in the U.S. in 2016. Sessions’s announced changes mean that federal prosecutors are allowed to enforce federal marijuana laws more aggressively in states where it has been legalized, a move opposed by both Democrats and Republicans, especially those in states with legal weed. Colorado U.S. attorney Bob Troyer said his office wouldn’t change its stance on marijuana prosecutions and would instead continue targeting “those who create the greatest safety threats to our communities.” For now, it’s unclear what the future holds, aside from the fact that it’s likely that Sessions — who, in the ‘80s, said he thought the KKK “were okay until I found out they smoked pot,” and more recently said “good people don’t smoke marijuana” — may just be getting started.
Brian Vicente is a Colorado-based attorney and founding member of the law firm Vicente Sederberg, which represents businesses in the marijuana industry. He also co-directed Colorado’s Amendment 64 campaign, which led to the state’s legalization of marijuana for recreational use. We spoke with him on the day Sessions announced these changes about what the most immediate effects of the new policy are and what comes next.
How are you?
Good, it’s been a busy day.
I can imagine. Did it come as a shock?
Kind of. We assumed he’d do something — he’s not a fan of marijuana. But it’s been a good 12 months [for the industry] so far.
What does this mean for the average person who lives in a state where marijuana has either been decriminalized or legalized for recreational use?
I think it creates a degree of confusion. Our marijuana laws — and industry, and the shops that those people may go to — have all relied upon state law, but they’ve also relied upon the federal government issuing these sort of policy statements over the years that allowed for this industry to exist and thrive. What happened today was that Jeff Sessions, with a stroke of the pen, got rid of these five policy memos dating back to 2009 that laid out what sort of rules those businesses need to follow if they want to not be targeted by federal prosecutors. With that gone, the power, in a sense, has shifted to local prosecutors — local U.S. attorneys, they oversee the DEA for that region — to kind of make the decision. They don’t have guidance from the federal government saying, “Hey, don’t do this if these businesses are running well, or, you know, not engaging in bad behavior. But if you feel like this is a priority for your region, to shut down marijuana shops, then go for it.”
So I think that is unlikely to happen, that there’ll be a large enforcement shift or enforcement push going on. But there’s some uncertainty about that.
Do you think that that will have a chilling effect on investment in the industry? Because it’s grown a lot.
It has been. This has become a multi, multi-billion dollar industry, nationally. And in terms of the growth and the possible chill in investment, there are two pieces. I do think we are going to continue to see new states legalize and medicalize marijuana. Both Michigan and New Jersey will be voting this year to legalize marijuana. I think that’s going to happen. This is an issue that’s very popular with voters and members of the American public. However, I do think there will be a bit of a chilling effect in terms of investment coming in to this area. Institutional capital and others may feel a little more hesitant about putting their money into something when the federal protection has become somewhat weakened.
How will this affect new businesses or entrepreneurs that are trying to break into the industry?
The biggest effect for new entrepreneurs in this industry will likely be that they will have a tougher time getting investors. It’s certainly possible that larger institutional investors will hesitate to invest in an industry that just lost some federal protection.
“I do think we are going to continue to see new states legalize and medicalize marijuana.”
Something I’m a little confused about — I’m not sure if there’s an answer to this yet — is, will the enforcement be more on the producer side or on the consumer? Is it going to be like, people are going to get arrested for possession [in states where marijuana has been legalized], or will it be more like, companies getting fined?
We don’t know if there will be more enforcement, but this has sort of opened the door for prosecutors to enforce more. And if they do engage in enforcement, it is almost definitely going to be of larger marijuana businesses in recreational states. I just think it would be wildly unpopular and a massive waste of federal resources to go after marijuana consumers, of which there are millions across the country, or even medical marijuana, which has some protection in federal law. Recreational marijuana doesn't really have that same protection. So my guess is, if we do see enforcement, it will be against your larger marijuana cultivation facilities, or your larger stores — and perhaps ones that are bending the rules or breaking the rules in some way. And, you know, a lot of people would say that's appropriate, if you're bending the rules, breaking the rules, not following state law, there should be enforcement around that. So those are the most likely targets.
Sessions and other opponents have called marijuana a “public health hazard.” What’s your response to that? Is that the case in Colorado? Is there a public health hazard?
No, and there were a lot of predictions when Colorado became the first state to legalize marijuana, that there would be a lot of negative impacts. We really haven't seen that. Not only has there been a large infusion of jobs in this area, as well as tax revenue, we’ve also seen teenage consumption of marijuana go down to the lowest levels we’ve seen in a decade. It really does seem like marijuana is working quite well in places like Colorado. Really, what I think the voters of this state want, is to be able to continue this experiment, to continue to allow us to have control of our state laws and not have the federal government trampling on these state rights.
I do think it’s worth noting, this could be one of those silver lining moments when the federal government has taken a stance that’s just so out of touch with the American public that we could see a real backlash. States and more elected officials and others are saying, "Enough is enough. We need to let states decide their future in this area and let the government back off." It’s clear that, if you look at any poll out there, Jeff Sessions has a very different view on marijuana than the average voter. This could be a change where we see a significant, positive change on marijuana on the federal level over time.