2018 kicked off with United States Attorney General Jeff Sessions single-handedly dismantling the federal government’s former cannabis enforcement framework, and since then, the media has been buzzing about what this means for states like Washington that have legalized both adult-use and medical cannabis. Whether this signals an imminent organized crackdown on the cannabis industry, or whether business will carry on as usual remains to be seen.
Sessions’ new memo didn’t provide a lot of specifics in terms of what the federal government would or wouldn’t do in terms of enforcement, nor did it contain a directive to U.S. Attorneys ordering them to go after cannabis businesses. Rather, it withdrew the August 2013 Cole Memo that has formed the basis of federal cannabis policy for the last few years, the February 2014 Cole Memo that extended low enforcement priority status to banking, and the 2014 Wilkinson Memo that addressed cannabis on tribal lands.
“What this means is that U.S. Attorneys are free to treat cannabis sales like any other federal crime, and each U.S. Attorney has full discretion to determine to what extent then can and should enforce federal law with respect to cannabis in states that have legalized.”
What this means is that U.S. Attorneys are free to treat cannabis sales like any other federal crime, and each U.S. Attorney has full discretion to determine to what extent they can and should enforce federal law with respect to cannabis in states that have legalized it. The consistency in federal enforcement under the Cole Memo is gone, and we now face the potential of 93 different enforcement policies—one for each U.S. Attorney. Washington State has two attorneys general, meaning that enforcement policies could differ between eastern and western Washington.
Annette Hayes, Attorney General for the Western District of Washington, released a statement that insinuated that enforcement policies in western Washington would remain the same, ensuring that “enforcement efforts with our federal, state, local and tribal partners focus on those who pose the greatest safety risk to the people and communities we serve.” On the other hand Joseph Harrington, Attorney General for the Eastern District of Washington did not issue any specific statement in response to the Sessions memo, and referred media requests to the Department of Justice in Washington D.C.. It remains to be seen what stance Harrington will take on cannabis enforcement.
What this shift means for cannabis business owners in Washington is still unclear, although there will most certainly be a ripple effect in terms how business is carried out. The future of banking, which is already problematic in the cannabis industry, remains the most unclear. Multiple state-chartered credit unions in Washington stepped up to provide banking services to licensed cannabis companies, but those banking services could be curtailed following the shift in federal policy. FinCEN’s 2014 guidance for banks relied heavily on the Cole Memo, which is no longer in play. If FinCEN withdraws its guidance, this could have a major effect on licensed cannabis companies’ ability to bank, even in Washington State.
Sen. Patty Murray was one of the original sponsors of the Secure and Fair Enforcement Banking Act, which would prohibit a federal banking regulator from penalizing a banking institution that provides services to cannabis companies. This piece of legislation could at least provide clarity to Washington cannabis businesses regarding banking services in a time where federal enforcement policies are still uncertain in half the state. But only time will tell how this shift will impact Washington cannabis businesses and consumers. Until then, it appears to be business as usual.