Cannabis Businesses Protected From Federal Government. For Now.
Cannabis Businesses Protected From Federal Government. For Now.
What will you say about cannabis this holiday season?For many of us, the holiday season means attending a number of office holiday parties. Between trying to snag egg-rolls and chicken skewers there’s a lot of networking, re-connecting, and small talk (so what do you think about Jimmy Garoppolo?). If you’re talking to a stranger, the conversation often leads to “and what do you do?” When I tell them I’m a corporate attorney who advises cannabis businesses, they usually ask about the federal government. Specifically, they ask what’s keeping the federal government from cracking down on the cannabis industry? That’s when I ask them if they’ve ever heard of James Cole, Dana Rohrabacher, and Earl Blumenauer. I then give them a brief history lesson (while keeping an eye out for new appetizers) on the Cole Memorandum and the Rohrabacher-Blumenauer amendment (formerly known as the Rohrabacher-Farr amendment).
We’ve previously covered the tenuous nature of the Cole Memo since U.S. Attorney General Jeff Sessions can revoke it at any time. Fortunately for the burgeoning cannabis industry, Sessions has managed to restrain himself and has kept the Cole Memo in place. What’s of more immediate concern is the status of the Rohrabacher-Blumenauer amendment (“RBA”).
The RBA prohibits the U.S. Department of Justice (“DOJ”) from spending money to interfere with the implementation of a state’s medical cannabis laws. The RBA has proven to be one of the strongest protections for the cannabis industry since the Ninth Circuit Court of Appeals enforced the spending prohibition against the federal government. After that ruling, the DOJ filed a motion to put a stay on one of its cases against medical cannabis growers in Washington (known as the Kettle Falls Five case). In order for the RBA to survive, either the House of Representatives or U.S. Senate appropriations committees need to attach the RBA to a federal spending bill. That federal spending bill then needs to be approved by the House and Senate and then signed by the President. The House is doing its best to keep everyone in the cannabis industry nervous this year as they blocked a floor vote on the RBA back in September. To add to the unease, Congress came dangerously close to another government shutdown this past week as it had until December 8th to pass a budget to fund the government. Congress didn’t pass a comprehensive budget but instead passed a stopgap spending bill to keep the government running – and the RBA in place – until December 22nd.
A two-week extension of the RBA does not come close to providing the stability cannabis businesses in a billion dollar industry need when making strategic business decisions, but it’s better than the alternative: a government shutdown and wild uncertainty. What the stopgap bill does do, however, is buy everyone time to call their local congressperson and Senator to voice their support for the RBA and for an end to the federal government’s antiquated (and unjust and immoral) position on cannabis. What we’ve learned in President Trump’s first year in office is that he hasn’t made cannabis policy a priority and he will most likely sign whatever spending bill Congress puts in front of him.
The President’s lack of interest in protecting the legal cannabis industry means it’s vitally important YOU call your representative to make sure the RBA is included in the spending bill that ends up on the President’s desk. So make that call and send that email! We don’t want the conversation at the next holiday party to be in remembrance of the Rohrabacher-Blumenauer amendment.
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