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Fate of legalized cannabis hinges on key vote

March 22, 2018

On Thursday, March 22, the U.S. House of Representatives voted to approve the most recent omnibus spending bill, allocating the funds approved by President Trump when he signed a budget deal on February 8, 2018. It includes, as has every such spending bill since 2014, a section prohibiting the use of Department of Justice (DOJ) funds to prosecute those who abide by state programs that have approved cannabis for medical use under state law, subject to strict regulatory requirements. Named after the amendment’s original sponsors, the Rohrabacher-Blumenauer Amendment applies only to medical, not recreational, cannabis.

The most likely outcome of the entire Congressional vote is that the omnibus bill will pass with an updated Rohrabacher-Blumenauer Amendment, listing all states and territories that have passed legalized cannabis laws. However, should that not occur and the amendment is not renewed (as AG Sessions has requested), the fallout could be significant.

Failure to pass the Rohrabacher-Blumenauer Amendment would mean, in light of the rescission of the Cole Memorandum, that the cannabis industry’s protections against federal prosecution would be reduced. As a result, the $6.73 billion cannabis industry (as of 2016) could experience difficulty shielding its activities behind compliance with state medical cannabis laws that offered a degree of protection from federal criminal prosecution. All cultivation centers, dispensaries, patients, and possibly ancillary services providers will be at increased risk of federal criminal prosecution for violations of the Controlled Substances Act, under which cannabis remains a Schedule I controlled substance.

Legislative solutions: The Marijuana Justice Act

Under federal law, the legality of cannabis is addressed principally by the Controlled Substances Act (CSA). The CSA schedules substances based on the substance potential for abuse when weighed against its proven medical value. As a Schedule I controlled substance, cannabis is classified under the CSA as having: (i) a high potential for abuse, (ii) no currently accepted medical use in treatment, and (iii) a lack of accepted safety for use under medical supervision. If enacted into law, a bill drafted by Sen. Cory Booker (D-NJ) and cosponsored by Sen. Kirsten Gillibrand (D-NY) called the Marijuana Justice Act (MJA) would change this classification.

The purpose of the MJA is to "de-schedule" cannabis through legislation. If enacted into law, the MJA would not require annual renewals (unlike the Rohrabacher-Blumenauer Amendment). While the MJA is designed to make cannabis legal, it also would address the perception or concern that cannabis laws have not been enforced fairly. The proposed law includes the following provisions:

  • Cannabis would be de-scheduled, making it legal for consumption according to state laws without the risk of federal prosecution.
  • States that maintain a prohibition on cannabis would lose federal funding if their enforcement actions are found to be racially discriminatory.
  • Federal courts would be required to expunge the records of individuals who were convicted of certain cannabis-related crimes.
  • Those convicted of under disproportionately-enforced cannabis laws would be allowed to file civil lawsuits against the states in which they were convicted.

While the MJA is designed to make all cannabis legal, it is also based around the idea that cannabis laws historically have not been fairly enforced among various communities. There are other bills that would decriminalize cannabis if enacted into law, at least one of which has been introduced in the House.

An amended amendment

Historically, the Rohrabacher-Blumenauer Amendment has listed each state and territory where cannabis has been legalized, prohibiting the use of DOJ funds to prosecute participants that adhere strictly to state regulatory schemes. A broader version, however, recently has been proposed. It reads:

“None of the funds made available in this Act to the Department of Justice may be used to prevent any of the several states from implementing their own laws that authorize the use, distribution, possession, or cultivation of marijuana on non-Federal lands within their respective jurisdictions.”

This revision of the amendment, which was provided to the House Appropriations committee by 59 lawmakers on Friday, March 16, 2018 (led by Reps. Tom McClintock (R-CA) and Jared Polis (D-CO)), is not restricted by its terms to medical cannabis as past versions of the Rohrabacher-Blumenauer Amendment have been.

If the Rohrabacher-Blumenauer Amendment is renewed as-is, the status quo will remain while alternative methods of addressing the conflict between the federal government and the states are explored. Thought leaders have predicted that the next version of the amendment will not include protections for recreational, as opposed to medical, cannabis.

If you or your company have any questions about the Rohrabacher-Blumenauer Amendment or the future of cannabis legal issues, please feel free to contact a member of our team. Our attorneys are experienced with many facets of the industry, including product safety, licensing, M&A, and product marketing and advertising.

Thompson Coburn advises clients on state laws governing the business of cannabis to facilitate compliance with those state laws. Federal laws concerning cannabis currently conflict with state laws in states that have legalized cannabis or possession of cannabis. Although federal enforcement policy may at times defer to these states’ laws and not enforce conflicting federal laws, interested businesses and individuals should be aware that compliance with state law in no way assures compliance with federal law, and there is a risk that conflicting federal laws may be enforced in the future. In addition to this Cannabis-specific note, readers should review Thompson Coburn’s Conditions of Use / Disclaimers page containing other important information.