On April 13, 2018, U.S. Senator Cory Gardner, a Republican representing Colorado, announced that he was assured by President Trump that the Trump administration would not be taking any actions that would negatively interfere with Colorado’s legal cannabis industry. Additionally, Senator Gardner stated that President Trump pledged to support a federalism-based legislation solution that would give Colorado ultimate authority to create its own policies on the issue.

White House spokeswoman Sarah Huckabee Sanders confirmed Senator Gardner’s account as being accurate.

Return of the Obama-era “Noninterference” Policy?

In a January 4th memorandum from the Department of Justice (“DOJ”), Attorney General (“AG”) Jeff Sessions revoked a previous policy, known as the “Cole memo,” an Obama-era document that provided some legal protections for businesses operating in states that allow and regulate cannabis sales.  AG Sessions then directed all U.S. Attorneys to “enforce the laws enacted by Congress” and to follow “well-established principles when pursuing prosecutions” related to cannabis activities.

President Trump’s commitment to Senator Gardner clearly contradicts the DOJ’s January 4th memorandum.

Such announcement by Senator Gardner may signal a shift in federal policy from one allowing federal prosecutors to file criminal charges against users and cannabis‑related companies even if the substance is legal in their state back to a more “hands-off” approach reminiscent of the approach taken by the the Obama administration, which embraced a policy of non-interference with cannabis-friendly state laws.

What Does This Mean for Existing Cannabis Businesses?

While Senator Gardner’s announcement surely provides a sense of reassurance to existing cannabis-related businesses located in states where cannabis is legal, one question that still remains is whether President Trump’s statement is just talk, or whether it represents the beginning of a true shift in federal policy and the legitimization of the cannabis industry on a federal level.

If you have any questions regarding this article, please contact a member of H&C’s Cannabis Industry Practice Group.

Mark Heyl

Chuck Reed

Anthony Verdugo

Mitesh Patel

Andrew McCarthy

Sepideh Ghiasvand

Lisa Stalteri