It had been almost five years since the Cole Memo was issued by former Deputy Attorney General James Cole, and just over six months since now-Attorney General Jeff Sessions issued his memo repealing it, when Cole took at stage in San Jose last week to deliver his keynote at the National Cannabis Industry Association\u2019s (NCIA) Cannabis Business Summit.<\/p>\n
In his opening remarks,\u00a0NCIA<\/a>\u00a0Executive Director Aaron Smith, touted the mass-acceptance of cannabis, saying \u201cThe tide has shifted\u2026 when we are talking about medical cannabis we are within the margin of error of 100 percent support, we are consistently 90 or so percent support across poll after poll after poll.\u201d When it came to adult use, Smith proclaimed that two-thirds of Americans \u201cnow support regulating the entire adult-use market, ending the failed policies of prohibition, and putting cannabis behind the regulated counter.\u201d Smith also stressed the importance of passing the\u00a0STATES Act<\/a>, or the \u201ceven more sweeping legislation\u201d introduced by Senate Majority Leader Chuck Schumer.<\/p>\n Cole began his presentation with a brief history of the Ogden Memo, and his work to craft both the first and second Cole memos, in an effort to \u201ccorrect\u201d the Ogden Memo. He said under Ogden, operators assumed that \u201cif you were in compliance with state law that\u2019s all you needed and the Federal government wasn\u2019t going to do anything.\u201d Countless raids later, it became clear that was not the case.<\/p>\n Then the 2012 election happened, and cannabis was legalized in Colorado and Washington, leading to \u201ca sea change.\u201d While he said the vote \u201cwasn\u2019t completely surprising,\u201d the Department of Justice had been focusing primarily on President Obama\u2019s re-election, and it took them some time to do the research they needed to properly respond. That response came out as\u00a02013\u2019s Cole Memo<\/a>, which built on the\u00a02011 Cole Memo<\/a>, and provided eight key policy points that states and cannabis businesses were to follow. To Cole, \u201cthis was a growing industry\u2026 and the estimation was that people are going to smoke marijuana,\u201d he said. \u201cWe\u2019re not going to stop this.\u201d Rather than try to stop cannabis commerce, the DOJ decided to encourage regulation of the nascent industry. Cole said the choice was simple in deciding to \u201ccontinue to say \u2018Sorry it\u2019s illegal,\u2019\u201d or \u201ctake the reality that\u2019s been presented to us and try and figure out how best to improve public safety?<\/p>\n At the time, Cole said the view in the Justice Department was \u201cthat the regulations under medical marijuana were not robust.\u201d<\/p>\n \u201cPeople felt that under many states medical marijuana regimes if you went into a marijuana clinic and you said \u2018Doctor every time I breathe in I feel like I have to breathe out,\u2019 you could get a recommendation for marijuana,\u201d he said.<\/p>\n Cole clarified that the goal of his 2013 memo was to encourage more robust regulations and to provide guidance to regulators and operators that if they addressed the eight priorities, the feds would \u201cget out of your way.\u201d<\/p>\n Cole said his 2013 memo was a \u201crational and sensible way\u2026 to figure out how to deal with something that has been stigmatized for a long time.\u201d He said an alternative to that sensible policy was to use the\u00a0Supremacy Clause<\/a>\u00a0of the constitution to preempt state law, specifically to \u201cpreempt the regulatory scheme, because that would encourage the violation of federal law.\u201d Since it is the Justice Department\u2019s job to protect public safety, Cole said they decided to \u201chelp enhance and enforce the regulatory scheme\u201d rather than preempt it, which would have subverted the will of the people and harmed public safety.<\/p>\n Unlike some of the decisions made under the current presidential administration, Cole said the decision to release the 2013 memo was well-thought out and the product of meetings where \u201cthe highest levels of our government\u201d discussed the pros and cons, until it was thoroughly \u201chashed out.\u201d While the Cole Memo had widespread\u00a0support he said, \u201cthe DEA was categorically, \u2018We don\u2019t like it, [marijuana is] drugs, its Schedule I, it\u2019s illegal and we want to prosecute.\u2019\u201d The Cole Memo was just the start.<\/p>\n \u201cAs soon as the Cole Memo was passed, I was asked \u2018What is next?\u2019\u201d he said. \u201cThe first thing out of my mouth was banking. Now that we dealt with the regulatory phase of it, what are you going to do about all the money that is being generated?\u201d Cole said the answer was clear, that it needed to go into banks so that this was not a cash-only business, which would make it harder to audit and a bigger target for armed robbery.<\/p>\n That is what led to the Treasury Department\u2019s 2014\u00a0FinCEN Guidance<\/a>, which, in absence of Congressional policy, is a major reason that there has been any success on banking for cannabis businesses. Cole said unfortunately, due to \u201cissues with retail banking,\u201d the guidance never really caught on and many cannabis businesses still do not have access to a bank.<\/p>\n \u201cIt\u2019s one thing to issue a policy; it\u2019s another thing to implement it,\u201d he said.<\/p>\n When asked about Sessions\u2019s repeal of the Cole Memo, Cole said, \u201cit was only a matter of time,\u201d adding that, despite the repeal, he hasn\u2019t seen any increase in prosecutions. The difference he said he has noticed is \u201cmuch less certainty in the industry.\u201d<\/p>\n \u201c[Before the repeal there was] some level of certainty that the department had a single policy that really directed how it would approach marijuana and the marijuana businesses around the country,\u201d he said, noting what businesses are left with now is, \u201c93 U.S. attorneys who are all given their own individual discretion about what to do with a marijuana case.\u201d<\/p>\n Even though those attorneys no longer have their hands tied by the memo, Cole said he doesn\u2019t \u201cexpect many of those attorneys to do much due to the political reality that most voters support legalization.\u201d He said his concern is that an attorney in a state that does not have legal cannabis will \u201cfind a hook to go after another state with legal marijuana.\u201d Or instead of going after a state, an attorney could target \u201ca business that is legal under the state law under which it is operating, and goes and prosecutes that business under federal law.\u201d Cole said he views that sort of action as \u201creally destabilizing to a very, very large industry,\u201d and was clear that \u201cmay be the kind of thing that would get Congress to do something.\u201d<\/p>\n But what would that something look like? What would be a suitable replacement for the Cole Memo? Instead of another memo, Cole said he \u201cwould rather see Congress actually take the bull by the horns\u2026sit down, look at what the issues are in the problem, craft a piece of legislation that deals with those issues and move on.\u201d<\/p>\n Both Cole and Smith are enthusiastic supporters of the\u00a0STATES Act<\/a>, with Cole saying, \u201cI think the STATES Act gets you most of the way there because it allows the banking to take place and commerce to take place.\u201d He did also touch on a couple key issues which the STATES Act would not address, namely the need for more medical research and the need to do something about the situation veterans face at the VA.<\/p>\n Unfortunately, it may be easier said than done to get something passed by Congress. According to Cole, \u201cyou have various committee chairs that are critical of this issue, who just don\u2019t like the marijuana issue at all and they just don\u2019t want to deal with it.\u201d He specifically called out the chairs of the House Judiciary Committee and the House Financial Services Committee,\u00a0Representative Jeb Hensarling<\/a>\u00a0and\u00a0Representative Bob Goodlatte<\/a>, as two anti-cannabis chairs who are retiring this year. He said those retirements are good news to the cannabis industry because, \u201cregardless of whether the Congress shifts in the 2018 midterms there will be new chairs to both of those committees,\u201d which will potentially allow for bills to move forward. Cole said he viewed the Rohrabacher-Blumenauer budget rider as another manifestation of this inability to pass legislation, \u201cbecause they couldn\u2019t implement some sort of change in our policy they tried to control what would normally be executive branch prerogatives.\u201d<\/p>\n Aside from veteran\u2019s access to medical cannabis, the one other issue that Cole felt the STATES Act did not adequately address was the need for increased access to cannabis for medical research.<\/p>\n \u201cEven if you make it legal for medical use in states it is still a Schedule I drug under the Controlled Substances Act,\u201d said Cole noting as a result, \u201cthe ability to test it and do clinical trials on it is very difficult and very onerous and there have only been very few who have actually gone through the expense and the hassle to get there.\u201d<\/p>\n In the absence of clinical research, we are left with anecdotal observations.<\/p>\n \u201cAnecdotally is not good enough,\u201d Cole said. \u201cThat\u2019s not how we do medicine in the United States of America.\u201d<\/p>\n In his keynote, Cole was also critical of some of the claims that have been made about cannabis.<\/p>\n \u201cHow we do medicine in the United States of America is we have a federal agency that says you have to test it, you have to make sure it is safe, and you have to make sure it actually does something, that it\u2019s not just snake oil, and that people are going to get better from it and not get worse from it, and there needs to be science behind it,\u201d he said.<\/p>\n Cole said he didn\u2019t think that cannabis should just be regulated by the FDA as a drug, but advocated \u201cpicking apart its components\u201d and regulating it \u201cbased on the type of use,\u201d such as industrial uses, medicinal uses, or recreational uses. Without naming it, Cole mentioned Epidiolex, saying \u201cThe latest drug that has been approved by the FDA for juvenile epilepsy is a cannabinoid-based product that is not psychoactive.\u201d<\/p>\n For Cole, it all came down to an issue of psychoactivity.<\/p>\n \u201cYou can have medicinal marijuana, that is truly medicinal, that is not psychoactive under the DEA regime just put it there like we put any medical drug and pharmaceutical that would come up through our system,\u201d he said. \u201cYou can have the intoxicant aspect of it regulated like we\u2019re regulating alcohol, another intoxicant, where we make sure that there are restrictions\u2026[on] the use of an intoxicant.\u201d<\/p>\n Despite advocating for \u201cthe intoxicant aspect\u201d of cannabis to be regulated like alcohol, a substance that is not scheduled under the Controlled Substances Act (CSA), when asked about descheduling Cole was dodgy, and kept deferring to rescheduling. While the issue of rescheduling vs. descheduling is perhaps one of the most important cannabis issues, Cole and Smith did not heavily address the topic in their chat, and it wasn\u2019t until the closed-session press Q&A where Cole opined on the matter.<\/p>\n When asked first asked about descheduling, and what it would mean for interstate commerce, he replied, \u201cI don\u2019t think just rescheduling alone will deal with the commerce aspect because it won\u2019t impact the recreational marijuana business.\u201d<\/p>\n \u201cIf you become a Schedule II drug \u2026 it can be prescribed, the revenue and the proceeds that come from the legitimate prescriptions of those drugs is no longer the proceeds of a criminal activity, but the recreational is still there and those would still be proceeds,\u201d he said.<\/p>\n Cole had a fix for the definitional problem around the word \u201cproceeds,\u201d and his fix was the STATES Act, saying it \u201chas a provision in it that says if\u2026 its marijuana, and you are complying with state law, it doesn\u2019t violate the CSA anymore and it\u2019s not proceeds under the money laundering statutes.\u201d<\/p>\n After dodging the first question about descheduling, a second question was asked, in a successful attempt to get Cole to go on record about the issue.<\/p>\n \u201cI don\u2019t think you need to necessarily deschedule,\u201d Cole said. \u201cLots of different pharmaceuticals are scheduled somewhere along the schedule hierarchy and I don\u2019t have a problem with that, I think it is a good thing to make sure that the pharmaceuticals that are put out are safe and effective.\u201d While his response was clear he advocates for pharmaceutical cannabis, he refrained from settling on a schedule, saying it should be rescheduled to \u201cat least Schedule II.\u201d<\/p>\n When asked Cole about his views on medicinal versus intoxicant cannabis and about the comparatively lax regulation around intoxicating pharmaceutical drugs, his reply betrayed a lack of understanding over how intoxication works.<\/p>\n \u201cYou have opioids that are certainly psychoactive,\u201d said Cole. \u201cWhen you deal with opioids and you take them without a prescription and take them beyond what you\u2019re supposed to be taking, all of a sudden it becomes an intoxicant.\u201d<\/p>\n Cole offered some advice to the cannabis industry to help their lobbying efforts.<\/p>\n \u201cI think as you try to change policy it\u2019s not one message, it\u2019s a message that\u2019s going to be geared to the ears of the person who you are talking to at that point,\u201d Cole said.<\/p>\n He went on to discuss the various stakeholder groups and what sort of arguments might resonate with them, the libertarians who care about personal freedom and state\u2019s rights, the medical advocates \u201clooking for a reason and a policy change to allow there to be the development of medicine,\u201d those interested in the potential revenue, and the issue of 10th Amendment police powers. Cole was clear that none of these arguments are in conflict with the others, it isn\u2019t about state\u2019s rights versus prison reform, and it can be both.<\/p>\n Smith ended the conversation by asking Cole about prisoner re-entry and efforts to address the racial imbalance in the ownership of cannabis businesses, which are\u00a0predominantly owned by white people<\/a>, while to this day, people of color continue to be\u00a0arrested at higher rates than whites despite similar rates of cannabis use<\/a>. Cole clearly articulated the problem.<\/p>\n \u201cThere is an overuse of the criminal justice system putting many, many people, way disproportionately people of color in prison for the use of marijuana and many times for non-violent use,\u201d he said.<\/p>\n How big is the problem?<\/p>\n \u201cSo much of who we put in prison as a federal government is based on drugs,\u201d said Cole, \u201cover half the prison population.\u201d<\/p>\n He also described his frustration over America lurching back and forth between progressive phases, \u201cwhere we do things that I think are enlightened,\u201d and recessive phases, where \u201cwe pull back.\u201d<\/p>\n While he was working for the Justice Department, they had a program to incentivize employers to higher former prisoners, where they would provide a bond to employers to cover the perceived risk of hiring prisoners, according to Cole, \u201cwe never had to pay on those bonds.\u201d Those sorts of programs are crucial for dealing with America\u2019s \u201chuge recidivism rate,\u201d which was no surprise for Cole because he said \u201cpeople come out of prison and nobody is going to hire them.\u201d<\/p>\n \u201cA lot of those programs were dismantled,\u201d he said adding he\u2019s Cole is hopeful, \u201cit\u2019s going to come back because it makes sense.\u201d Cole took a holistic approach that worked to address the root causes that resulting in people ending up in prison, and said he hopes \u201cas people start coming out of the prison system that we let them have a job.\u201d<\/p>\n TELL US<\/strong>,\u00a0what changes are you hopeful for in terms of the cannabis industry?<\/p>\n The post Former Deputy AG James Cole Wants Cannabis Regulated Like Alcohol<\/a> appeared first on Cannabis Now<\/a>.<\/p>\n
It had been almost five years since the Cole Memo was issued by former Deputy Attorney General James Cole, and just over six months since now-Attorney General Jeff Sessions issued his memo repealing it, when Cole took at stage in San Jose last week to deliver his keynote at theContinue Reading<\/a><\/span><\/p>\n","protected":false},"author":114,"featured_media":0,"comment_status":"false","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[40,50,5238,897,1074,848,5239,5240,3156,1170,5241,2478,415,139,1419,71,81,5242,5243,700,978,5244,5245,5246],"tags":[],"_links":{"self":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/28329"}],"collection":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/users\/114"}],"replies":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/comments?post=28329"}],"version-history":[{"count":1,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/28329\/revisions"}],"predecessor-version":[{"id":28330,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/28329\/revisions\/28330"}],"wp:attachment":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/media?parent=28329"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/categories?post=28329"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/tags?post=28329"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}A Sea Change in 2012<\/h4>\n
Federal Preemption or Sensible Policy?<\/h4>\n
A Quagmire in Congress<\/h4>\n
How We Do Medicine in the United States of America<\/h4>\n
Does Cannabis Need to be Descheduled?<\/h4>\n
Advice to the Industry<\/h4>\n
Prisoner Re-Entry & Cannabis Equity<\/h4>\n
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\nRead More: Former Deputy AG James Cole Wants Cannabis Regulated Like Alcohol<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"