Fear and confusion swept the country after the U.S. Attorney General rescinded the 2013 Cole Memo, but hemp industry leaders say they have little to worry.
By Julia Clark-Riddell
On Thursday, U.S. Attorney General Jeff Sessions ignited a firestorm of cannabis industry anxiety when he announced he would be rescinding the Obama-era policy of letting state-compliant legal cannabis businesses operate untouched.
Sessions wrote in a one-page memo on Jan. 4 that his Department of Justice was granting local federal attorneys free reign to prosecute state-compliant recreational cannabis companies under the authority of the Controlled Substances Act.
Sessions’ memo explicitly reverses the policy outlined in the 2013 “Cole Memo,” from former deputy Attorney General James M. Cole, which stated that the federal government would not concern itself with state-compliant companies as long as specific criteria were met, such as children weren’t acquiring marijuana or cannabis wasn’t crossing state lines.
“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance [the Cole Memo] undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” said Attorney General Jeff Sessions. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”
It is worth noting that the Cole Memo was never an official policy. For example, the Cole Memo didn’t stop U.S. Attorney Melinda Haag from prosecuting two California medical marijuana dispensaries in 2013. It also is worth noting that the Rohrabacher-Blumenaeuer amendment, which prohibits the Department of Justice from using any federal funds for prosecuting state medical marijuana programs, continues to be in effect until the current federal stopgap funding bill expires on Jan. 22.
But these statements all concern the marijuana industry — what about Sessions’s new policy memo’s impact on the hemp industry?
Jonathan Miller, an attorney with the Lexington, Kentucky-based law firm Frost Brown Todd and a member of the Hemp RoundTable lobbying group, said that he thinks the hemp industry doesn’t have reason to be worried.
“From the perspective of clear federal law, General Sessions’ rescission of the Cole Memo has no impact on the thriving and expanding U.S. hemp industry,” Miller wrote, in an email after the announcement which he said contained his “initial reaction” to Sessions’s policy change.
“The Sessions order explicitly is limited to marijuana, which is considered a controlled substance under federal law, even in the dozens of states that have legalized it,” Miller said. “By contrast, industrial hemp retains strong protections under federal law, specifically industrial hemp products that have been clearly exempted from the Controlled Substances Act for decades, as well as those that are derived from hemp grown or cultivated in Farm Bill-authorized state pilot programs.”
However, Miller said that he was worried that Sessions’s memo rescinding the Cole Memo could hurt the hemp industry because public confusion about the differences between hemp and marijuana could drive away investors and customers.
“While there is a clear legal distinction between hemp and marijuana, unfortunately much confusion remains in the marketplace, confusion that has been aggravated by inaccurate public statements made by federal agency officials,” wrote Miller. “I fear that the Cole Memo rescission will only exacerbate this confusion.”
In order to combat this public misperception, Miller said that the U.S. Hemp Roundtable and other trade associations are focused on providing education about what constitutes hemp compared to marijuana, and that it remains critical to pass the Industrial Hemp Farming Act, which would once and for all eliminate confusion around the plant.
The founder and publisher of the Hemp Business Journal, Sean Murphy, agrees with Miller that the hemp industry shouldn’t balk at this policy announcement.
“CNN calls it a seismic shift — I don’t think it is — but if it is then it’s only a seismic shift for marijuana companies — not hemp companies,” Murphy told WholeFoods Magazine. “If a company is a ‘hemp-derived CBD’ company … then it should not truly affect them much from a business/operative perspective.”
Murphy also said that investors could get nervous at Sessions’s announcement, but again, it would only be those investors who do not understand the Cole Memo and the fact that it never concerned hemp companies.