Uncertainty interjected into the cannabis industry earlier this month by U.S. Attorney General Jeff Sessions could create new opportunities for the sector and advance legalization legislation.
But the realities of a post-Cole Memo legal landscape underscore just why the National Cannabis Industry Association exists, the organization’s executive director Aaron Smith told the Colorado Cannabis Caucus Tuesday evening.
The demise of the Cole Memo — Obama-era U.S. Department of Justice guidance on marijuana enforcement — needs to be taken seriously by the entire industry, he told the gathering of 250 NCIA members in downtown Denver.
“But it’s important to note that this was not a major, substantive shift in policy,” Smith said. “U.S. attorneys have prosecutorial discretion around which cases they prosecute — just as they always have.”
In the aftermath of Sessions’ marijuana moves, several of the country’s 93 U.S. attorneys said they weren’t going to change their enforcement priorities, he noted. But he conceded that there were some “less positive statements” from federal prosecutors in Massachusetts and Oregon, for instance.
A handful of U.S. attorneys might try “to make a name for themselves in the drug war community, where people still actually support shutting down legal businesses,” he warned.
The attorney general made a “huge tactical error” with unilateral action, Smith told the crowd.
“(Sessions) did not coordinate with the Department of Treasury, he did not coordinate with anybody in Congress,” he said. “From the intelligence that we’re receiving from our lobbyists who have been working very closely with the Trump Administration, he did not even inform the White House that he was doing this.
“He’s on an island.”
In an interview with The Cannabist after his presentation, Smith said that Sessions’ decision has forced members of Congress and other national leaders to take sides when it comes to cannabis legalization.
“(Politicians) look at our side, where we have over two-thirds of the country supporting legal marijuana and over 70 percent say that they want the federal government out of it. It’s kind of hard of them to go with Jeff Sessions,” he said.
More members of Congress are stepping forward to ask how they can help, NCIA staff report. Given the country is in an election year, Smith expects more federal lawmakers to go on the record with their support for cannabis legalization.
But he conceded that getting the momentum needed for the current crop of pro-cannabis bills in Congress to progress could be a “really heavy lift,” especially since congressional leadership is at best hesitant when it comes to cannabis legalization efforts.
There is reason for optimism for a solution to another dilemma facing NCIA members’ businesses, Smith said. Marijuana banking issues are ripe for change on Capitol Hill.
Due to federal prohibitions and fear of federal prosecution, many banks and financial institutions avoid working with cannabis companies, he said. But other than Jeff Sessions, there really isn’t any political power player pushing against marijuana banking legislation.
“There’s not a lobby trying to keep cannabis businesses from being able to have bank accounts. Because even if you land on the side of the prohibitionists, you still want to have businesses being able to put their money in the bank, so it’s not a cash-only operation,” he said.
The organization’s Colorado Cannabis Caucus broke out in applause when Smith praised the state’s industry for setting a national example.
“You guys have shown in a state like Colorado — that has for over four years successfully regulated marijuana …that regulation works and it’s by far the better alternative than allowing cannabis to go back to the black market,” he said.
Colorado must set an example and continue to lead the nation’s cannabis sector by strictly complying with state law, he emphasized.
“Make sure that you’re a good neighbor and a good corporate citizen,” he said, “so that if rogue law enforcement agents or a U.S. attorney does decide to do some kind of a crackdown, that you have a community around you that’s standing up to defend you. So now’s the time to make sure that you’re 100 percent compliant and again, go above and beyond.”
NCIA has been impressed with the legal cannabis industry’s resolve in the face of the attorney general’s actions, Smith told The Cannabist.
“I think people are a little bit nervous,” he said, “but I haven’t seen anybody say, ‘I’m out of this, I’m going underground.” The industry is stronger now than it has ever been.”
Related: Experts and politicians weigh in on potential impact of Sessions’ rollback of marijuana policy