The Cole Memo

In August 2013, in response to state ballot initiatives to legalize marijuana, the Department of Justice (DOJ) released a memorandum (Cole Memo) to all US attorneys giving updated guidance regarding federal marijuana enforcement under the CSA. The Cole Memo advises federal prosecutors and law enforcement agencies to focus their resources on the priorities that are, “particularly important to the federal government.” These priorities include:

  • Preventing distribution of marijuana to minors;
  • Preventing cannabis revenues from going to criminal enterprises, gangs, and cartels;
  • Preventing diversion of marijuana from states where it is legal to other states where it is not;
  • Preventing state-authorized activity from being a cover for illegal activity, including trafficking of other illegal drugs;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands; and
  • Preventing marijuana possession or use on federal property.

 

Regulation of marijuana activities that do not fall within these categories are left to local and state law enforcement agencies. The DOJ expects local and state governments to enact and implement strong and effective regulatory and enforcement systems to ensure states follow federal guidelines. The memo makes it clear however, that if local and state authorities fail to properly curtail marijuana activities within the federal priorities listed above, “the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions.”