U.S.

Department of Justice Policy

Possessing, growing, and distributing marijuana is federally illegal, apart from a narrow exception for research.
Meanwhile, dozens of states have taken a different approach, allowing marijuana for medical or adults’ use,
and the federal government’s enforcement of its marijuana laws has relaxed. In an August 2013
memorandum1 issued to federal prosecutors, then-Deputy Attorney General James Cole outlined the
Department of Justice’s (DOJ) enforcement policy with respect to states’ medical marijuana and adult use
laws (and businesses and individuals complying with those laws).

The cornerstone of this policy is its emphasis on state regulation. According to the memo, the federal
government will focus its efforts on eight enforcement priorities and rely on state law enforcement authorities
to manage areas that are not federal priorities. The Cole memo made clear that in order to ensure that the
U.S. government’s concerns are addressed, the department expects states to implement a strong regulatory
framework. It states, “The Department’s guidance in this memorandum rests on its expectation that state and
local governments that have enacted laws authorizing marijuana-related conduct will implement strong and
effective regulatory and enforcement systems ...”

The eight areas of particular concern to the department are:

1. Preventing the distribution of marijuana to minors;
2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
3. Preventing the diversion of marijuana from states where it is legal under state law in some form from
going to other states;
4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the
trafficking of other illegal drugs or other illegal activity;
5. Preventing violence and the use of firearms in the cultivation and use of marijuana;
6. Preventing drugged driving and the exacerbation of other adverse public health consequences
associated with marijuana use;
7. Preventing the growing of marijuana on public lands and the attendant public safety and
environmental dangers posed by marijuana production on public lands; and
8. Preventing marijuana possession or use on federal property.

Previous Policy Statements

The August 2013 memo was written in response to voter initiatives in Washington and Colorado that allow
regulated adult access to marijuana.2 (Subsequently, six more states enacted similar laws.) The purpose of the
memo was to update federal policy as it appeared in two previous DOJ memos issued in 2009 and 2011.

In October 2009, the DOJ issued a memorandum3 that memorialized what President Barack Obama had said
on the campaign trail — that the federal government should not target those complying with state medical
marijuana laws. The Ogden memo discouraged law enforcement actions against medical marijuana patients
and their caregivers who acted in clear and unambiguous compliance with state laws.

In its next marijuana enforcement memo, issued in 2011,4 the DOJ limited its previous guidance, saying its
non-enforcement policy did not apply to businesses. The most recent memo, the August 2013 Cole memo,
makes clear that this limitation no longer applies. Even large-scale, for-profit businesses are not supposed to

1 James M. Cole, Guidance Regarding Marijuana Enforcement, United States Department of Justice, Office of the
Deputy Attorney General, August 29, 2013. http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf
2 Bly, Laura S. “Colorado, Washington OK Recreational Marijuana Use,” USA Today, November 7, 2012.
3 David Ogden, Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States

Authorizing the Medical Use of Marijuana, DOJ, October 19, 2009. http://blogs.justice.gov/main/archives/192
4 James M. Cole, Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions

Seeking to Authorize Marijuana for Medical Use, United States Department of Justice,. June 29, 2011.
be targeted if they do not place the eight DOJ interests at risk. In addition, the 2013 Cole memo applies not
only to medical marijuana, but also to adult use.

Policy in Practice
The 2013 memo was consistent with DOJ policy, in practice, throughout the Obama administration. The vast
majority of federal prosecutions took place in states that did not provide adequate regulations. States with
strong regulations saw little or no federal interference, with federal actions in those states generally being
limited to those breaking state law or making dispensaries move further from schools.

Congressional Action Mandating Non-Interference in Medical Marijuana Programs

In the 2015 and 2016 criminal justice appropriations budgets, Congress weighed in against federal
enforcement targeting state-legal medical marijuana programs. It included a rider providing, “[n]one of the
funds made available in this Act to the Department of Justice may be used, with respect to [medical marijuana
states] to prevent any of them from implementing their own laws that authorize the use, distribution,
possession, or cultivation of medical marijuana.”5 Yet, the DOJ continued pursuing some cases in California,
arguing Congress had prevented actions against states — not individuals. In August 2016, a Ninth Circuit
panel disagreed, ruling that the rider prevented appropriated funds from being used to target people who fully
complied with state medical marijuana laws.6

The Trump Administration

The Trump administration has refrained from interfering with well-regulated marijuana programs, which is
consistent with candidate Donald Trump’s statements. Mr. Trump said “In terms of marijuana and
legalization, I think that should be a state issue, state-by-state.”7 More than 70% of the public supports
allowing states to determine their own marijuana policies without federal interference.8 In addition, Congress
may pass a rider preventing federal interference in state marijuana policies in summer 2017.

Marijuana Laws and Preemption

Under our federalist system of government, states have broad authority to adopt their own criminal laws. The
Controlled Substances Act itself explicitly says state laws are not preempted unless there is a positive conflict
between the two laws — such as if a state required someone to violate federal law. Unsurprisingly, the federal
government has never argued state marijuana laws are preempted, and in some cases where third parties have
made the case, they have typically lost.9

The Limitations of Riders and the Cole Memo

Although they have given states and individuals some breathing room, the DOJ memos and the rider did not
change federal statutes that criminalize possession, cultivation, and sale of marijuana. Also, the rider applies
only to a given year’s appropriations, so it must be renewed annually to continue in force.

As long as federal law criminalizes marijuana, there will be complications for state-legal individuals and
businesses. Despite a federal memo aimed at reassuring banks, many are unwilling to provide financial
services to marijuana businesses. Other areas of federal conflict include excessive taxes — cannabis
businesses cannot deduct most business expenses — and an ATF policy that limits consumers’ gun rights.

The federal policy of a relatively hands-off approach has created breathing room for states and individuals.
But, to resolve the conflict and prevent the public safety issues and tensions caused by it, marijuana must be
federally de-scheduled and state-legal marijuana activities must become legal under federal law.

5 Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332–33 (2015).
6 United States v. McIntosh, Case No. 15-71179 (9th Cir., 2016)
7 Jenna Johnson, “Trump softens position on marijuana legalization,” Washington Post, October 29, 2015.
8 “Republicans Out Of Step With U.S. Voters On Key Issues, Quinnipiac University National Poll Finds; Most Voters
Support Legalized Marijuana,” Quinnipiac Poll, Feb. 23, 2017.
9 See: White Mountain Health Center Inc. v. County of Maricopa, CV-2012-053585, (December 3, 2012) and Arizona v. United

States, Case No. CV 11-1072-PHX-SRB (D.C. Ariz. January 4, 2012).