Trouble on the Horizon

[dropcap class=”kp-dropcap”]W[/dropcap]ashington State’s Attorney General, Bob Ferguson, has been outspoken in his disagreement with the Trump administration’s policies, and now, Ferguson has indicated that his office is prepared for a legal fight over cannabis legalization in Washington State. Although Ferguson stated, “We hope it doesn’t come to that,” he indicated in a recent interview with The Columbian that he would not hesitate to act. “Hypothetically speaking, right, there could be a business that’s licensed in Washington State selling marijuana that’s following state law,” Ferguson stated. “Let’s assume they’re following state law to a T—that’s important—and the feds go in and try to shut that business down, they seize the marijuana or the proceeds. If in my view, we’ve got a legitimate business, playing by our rules here in Washington State and the federal government comes in to try to shut that down, we’d be interested in that.”

Ferguson specifically stated that he would be willing to get involved if the federal government takes any “adverse action” against a cannabis business operating in full compliance with state and local law.

In January, Attorney General Jeff Sessions rescinded the Obama administration-era guidance that outlined the federal government’s enforcement priorities for states that had legalized cannabis. Sessions replaced this guidance with a general policy authorizing United States attorneys across the country to use discretion in prosecuting federal cannabis crimes within their jurisdictions.

Although it remains to be seen how all this will play out in Washington, the Washington State Liquor and Cannabis Board sent out an email in January on behalf of Ferguson’s office asking for input from residents and licensees as to whether they have “experienced a change in [their] business practices or customer relationships that [they] believe is connected to the Sessions memo.” This indicates that the state Attorney General’s office is gathering, or attempting to gather, evidence of harm in anticipation of potential litigation.

“Attorney General Ferguson also emphasized that he has reached out to Sessions multiple times to discuss Washington’s legal cannabis laws and policy, but has been repeatedly declined.”

Attorney General Ferguson also emphasized that he has reached out to Sessions multiple times to discuss Washington’s cannabis laws and policy, but has been repeatedly declined. Sessions even sent Ferguson and Gov. Jay Inslee a factually inaccurate letter regarding the state’s cannabis program that failed to acknowledge that the state had merged its medical and adult-use cannabis programs. About this, Ferguson stated, “[To] me, that’s embarrassing that the US Attorney General, on an issue of that importance is writing a letter to a governor and attorney general of another state and he’s just got his facts wrong. That’s a problem, I think.”

Although Ferguson has been unwilling, understandably, to discuss legal strategy, he has indicated that a legal battle could center on “whether federal law preempts state law” when it comes to cannabis. There are strong arguments that the state cannabis regimes implemented by states like Washington are not in “positive conflict” with federal law, but this issue has not yet been decided in court.

Given the current uncertainty surrounding how these changes to federal cannabis enforcement policy will play out, it’s certainly reassuring that Ferguson is in our corner and prepared to fight for Washington cannabis consumers and licensees alike.