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By Barak Cohen, Paul O. Hirose, and Andrew J. Victor
As of today, 30 states have legalized the medical use of cannabis, and eight states and the District of Columbia have legalized the recreational use of cannabis. (For purposes of this article, the terms cannabis and marijuana are used interchangeably. See 21 U.S.C. § 802(16)). These state laws reflect an undeniable shift toward a more tolerant legal environment for not only cannabis users, but also for an entire industry focused on cannabis use. Prompted by this shift, the cannabis industry is growing rapidly. By one recent estimate, the market for recreational cannabis buyers increased from $9.2 billion in 2017 to $47.3 billion by 2027. (Thomas Pellechia, Legal Cannabis Industry Poised For Big Growth, In North America and Around the World, Forbes (March 1, 2018)). This growth has encouraged numerous businesses not directly involved in the cannabis industry to seek to partner with companies directly involved in cannabis production and distribution through investments or by providing much-needed support, such as logistical, human resources, and insurance services.
Despite the liberalizing path set by the states mentioned above, cannabis remains illegal under the federal Controlled Substances Act (CSA), 21 U.S.C. §800, et seq. Several years ago, in formal guidance issued to federal prosecutors nationwide, the U.S. Department of Justice (DOJ) discouraged prosecution of some cannabis-related offenses. Recently, however, USDOJ rescinded the guidance, reminding its prosecutors that cannabis remains a prohibited substance under federal law, notwithstanding state laws that legalize cannabis. If enforced, this change in policy and the threat of criminal penalties obviously threaten to chill the growth of the cannabis industry.
What is the current state of federal enforcement as to cannabis? Are there ways that companies not directly involved in the cannabis industry may still do business with companies in the industry, while minimizing potential exposure to federal criminal penalties under the CSA?
In 2013, James M. Cole, then USDOJ’s Deputy Attorney General, published a memorandum instructing federal prosecutors to use their limited resources to prosecute only marijuana-related offenses that implicate a significant federal interest (the Cole Memo). (James M. Cole, Deputy Att’y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013)). According to the Cole Memo, a federal interest arises when a case involves violence in the cultivation and distribution of marijuana, growing marijuana on public lands, and possession and use of marijuana on federal property. In states that have decriminalized marijuana and established a well-regulated legal framework for cultivation, distribution, and use of the substance, the Cole Memo emphasized that marijuana-related activities under such frameworks are less likely to threaten federal interests, and therefore do not warrant enforcement under the CSA.
In January 2018, however, the current head of USDOJ, Attorney General Jeff Sessions, released new guidance (the Sessions Memo) to U.S. Attorneys that formally rescinded the Cole Memo. (Jefferson B. Sessions, Att’y Gen., Memorandum for All United States Attorneys: Marijuana Enforcement (Jan. 6, 2018)). The Sessions Memo emphasizes that the CSA remains the law of the land, and that the cultivation, distribution, and possession of marijuana continues to be illegal under federal law. The Sessions Memo also reminded prosecutors that marijuana-related activities can serve as a basis for the prosecution of other crimes, such as money laundering and the unlicensed transmission of money under 18 U.S.C. §1956 and §1960, respectively. The Sessions Memo does not dictate whether federal prosecutors should target marijuana-related activities, regardless of whether the activities occur in jurisdictions where marijuana is otherwise legal. Rather, the Sessions Memo instructs federal prosecutors to exercise their prosecutorial discretion with respect to the enforcement of the CSA as to marijuana in accordance with the well-settled principles of federal prosecution.
The principles of federal prosecution are listed in the U.S. Attorneys’ Manual, which describes official policies for federal prosecutors. These principles afford prosecutors “wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law.” (U.S. Attorneys’ Manual, §9-27.110). The principles of federal prosecution require federal prosecutors to weigh “all relevant considerations” when determining whether to initiate or decline criminal charges. (Id. §9-27.230). The U.S. Attorneys’ Manual sets forth a non-exhaustive list of such considerations, including federal law enforcement priorities, the nature and seriousness of the offense, the deterrent effect of prosecution, the target’s culpability in connection with an offense, the target’s history with respect to criminal activity, the target’s willingness to cooperate in an investigation or prosecution of others, the interest of any victims, and the probable punishment if the prosecutor obtains a conviction. (See id.)
As described above, USDOJ currently does not set any bright-line rules for the enforcement of the CSA as to marijuana-related activities. Thus, the principles of federal prosecution and the case-by-case interpretation and application of these principles are critical to predicting the factors that will shape whether federal prosecutors will seek to enforce the CSA with respect to marijuana.
In the wake of the Sessions Memo, we are unaware of any federal prosecutors who have sought charges against companies merely for investing in or providing indirect support for cannabis-related activities where the activities, per se, do not implicate federal interests (such as deterring violent crime). But in the absence of clear enforcement guidelines, what due diligence can you use to minimize the risk of federal prosecution if your company is interested in investing in or partnering with a company that is directly involved in the manufacture and distribution of cannabis products? The following criteria should help guide your assessment.
There are significant business opportunities, as well as legal risks, presented by involvement in the cannabis industry. Cannabis-related activities remain technically illegal under federal law. USDOJ does not, however, require the enforcement of the CSA as to cannabis, particularly in states where substance is legal, or when businesses only indirectly support the cannabis industry by providing legitimate services and investments.
There are no easy answers for completely avoiding the risk of criminal liability for doing business in the cannabis industry, nor is it always possible to forecast the vagaries of prosecutorial discretion. Nonetheless, if your company is considering doing business or partnering with another company that is directly involved in cannabis-related activities, assessing the due diligence questions listed above and seeking the advice of knowledgeable counsel will help minimize the risk of criminal liability.
Barak Cohen, a former federal prosecutor, is a partner in the White Collar and Investigations practice of Perkins Coie LLP, and Litigation Lead for the firm’s Washington, D.C. office.
Paul O. Hirose is senior counsel at Perkins Coie in Los Angeles and co-chair of the firm’s Supply Chain Compliance & Corporate Social Responsibility practice.
Andrew J. Victor is an associate at Perkins Coie in the White Collar and Investigations and Government Contracts practice groups in Washington, D.C.
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