Townhall: “In Arizona, meanwhile, the Medical Marijuana Act approved by voters last November remains on hold thanks to Gov. Jan Brewer, who worries that it conflicts with the federal Controlled Substances Act. Brewer, a Republican who proudly advocates a ‘new federalism’ that ‘protects the States and (their) citizens against an overreaching federal government,’ in this case seems happy to let the Obama administration override the will of Arizona’s voters.”
The News Tribune: “The operators of a Tacoma medical marijuana dispensary beat drug charges earlier this year. Now they want their pot back.”
White Mountain Independent: “The planning and zoning department approved a conditional use permit for a medical marijuana dispensary at 24 W. Main Street. . . . Even though the permit was issued, it’s not clear at this time when or if a dispensary will open at that location.”
New York Times: “Marijuana is known to cause red eyes, gales of laughter and the munchies. In Arizona, add another side effect: utter confusion. Voters narrowly approved a ballot initiative last November allowing medical marijuana in the state, but the result has been just the opposite of an orderly system of dispensing cannabis to the truly sick. Rather, police raids, surreptitious money transfers and unofficial pot clubs have followed passage of the new law, creating a chaotic situation not far removed from the black-market system that has always existed.”
DailyKos: “I’m worried that Gov. Brewer might be losing her memory. . . . Here we are with you still trying to fight the will of the voters. Why don’t you defend this law like you do SB 1070? But as for your revisionist history let’s take a little walk down memory lane.”
Yuma Sun: “Arizona might not have a medical marijuana law today had police chiefs spoken out against it, Gov. Jan Brewer said Wednesday. But she conceded later that perhaps she was guilty of the same neglect.”
New Jersey Governor Chris Christie to Allow Marijuana Dispensaries as Governor Jan Brewer Keeps Thwarting Voters
Phoenix New Times: “New Jersey Governor Chris Christie isn’t scare of the feds anymore when it comes to medical marijuana dispensaries. . . . Then there’s Arizona Governor Jan Brewer. Despite a clear victory in the 2010 by Arizona voters, Brewer thumbed her nose at democracy in May when she ordered the state Department of Health Services to reject dispensary applications
Alan Sobol and his 2811 Club are breaking unchartered ground by creating an organization where card-carrying Arizona medical marijuana patients can pay a fixed fee of $75 to enter the club’s facility and obtain “free” marijuana. Sobol claims his cannabis club is legal under Arizona’s medical marijuana laws, but he filed a lawsuit in Maricopa County Superior Court to get a court ruling on the legality of his cannabis club under Arizona’s law.
Arizona Revised Statutes Section 36-2811.B, states:
“A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau . . . For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient’s medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.”
This statute apparently protects a registered Arizona medical marijuana patient from violating Arizona’s criminal marijuana laws if the patient gives not more than 2.5 ounces of marijuana (or less if the recipient has additional marijuana) to another Arizona medical marijuana patient. Stated another way, this statute protects registered Patient A if Patient A gives an allowable amount of marijuana to registered Patient B and nothing of value is received by Patient A.
If a cannabis club wants to be protected by ARS Section 36-2811.B then the events that occur at the club must be limited to registered Patient A or registered caregiver C giving an allowable amount of marijuana to registered Patient B. Here are some potential problems that could cause a cannabis club to not be protected from Arizona state prosecution:
- Charging patients a fee when the club is involved in the marijuana gift transaction. If a patient pays $75 to enter the club’s facility will a judge or jury find that the charge is for something other than to obtain marijuana? If a cannabis club charged $75 to get in its door would anybody pay that amount if the club did not provide free marijuana? Can you think of any business establishments that charge $75, $50 or $25 to get in the door? Private country clubs charge a lot, but they provide golf and other amenities. There are also private clubs that charge a high membership fee, but these cannot survive unless they provide value in return for the fee. Yes amusement parks charge big admission fees, but cannabis clubs are not amusement parks or country clubs. The best argument a cannabis club would have to avoid prosecution for violating Arizona’s criminal marijuana laws is if the club merely charges a fee for the use of its premises and the club is not involved in any way in the marijuana gift transaction. Example 1: Consider Cannabis Club 1 that charges $75 for a registered patient or caregiver to enter its premises. It does not store or possess marijuana or assist donors and donees in finding each other or in consummating a marijuana gift transaction. The donor must find a donee while both are in Club 1’s premises and the donor personally gives the donor’s marijuana to the donee. Example 2: Compare that scenario with Cannabis Club 2 that charges the same premises entry fee, but it accepts marijuana from patients and caregivers who then depart the premises and are not thereafter involved in the gift transaction. Club 2 holds the marijuana and gives it to a patient. Neither the marijuana donor nor the donee ever meet or are involved in consummating the gift transaction. I do not believe Club 2 will be protected by ARS Section 36-2811.B.
- Who is making the gift of marijuana? ARS Section 36-2811.B protects Patient A who gives marijuana to Patient B in exchange for nothing of value. The cannabis club must be able to prove that the marijuana transaction involved Patient A giving to Patient B. The transaction cannot be cannabis club giving marijuana to Patient B. The club must keep detailed records to show the source of all marijuana given to patients. If a person wants to be able to rely on the protection provided by ARS Section 36-2811.B that person must be able to prove that a gift of marijuana complied with the requirements of ARS Section 36-2811.B. If Patient A merely gives marijuana to Patient B how does Patient A prove the gift complied with ARS Section 36-2811.B? At a minimum, the club should have a document signed by Patient A (or Caregiver C) and Patient B in which it states that on a certain date Patient A (or Caregiver C) gave Patient B a specified amount of marijuana for free. The document should contain a statement that the recipient represents and warrants to the giver that acceptance of the marijuana will not cause the recipient to possess more than 2.5 ounces of marijuana. Donor and donee must sign the document. Although not required, the signatures should be acknowledged before a notary public. The document should contain proof of the identity of the parties such as the party’s Arizona driver’s license number and patient or caregiver ADHS registration numbers. I also recommend the parties make a photo copy of each party’s Arizona driver’s license and patient or caregiver card and attach the copies to the acknowledgment of gift document.
- Does a registered patient or caregiver make the gift of marijuana or is the gift made by a third party? For ARS Section 36-2811.B to apply, Patient A or Caregiver C must make a gift to Patient B. If neither Patient A or Caregiver C is at the club’s facility to actually make the gift and the gift is made by club personnel, then a court could find that Section 36-2811.B does not apply.
- What is the source of the marijuana that is given to a patient? The cannabis club must be able to prove that the marijuana that was actually given by Patient A to Patient B was Patient A’s marijuana. This means that at a minimum the club must have an inventory system to track the source and disposition of all marijuana. It must also have a system to segregate each patient’s and caregiver’s marijuana so it can show the source of the marijuana when another patient receives a gift of marijuana.
- Does Arizona law allow the cannabis club to possess Patient A’s marijuana? I don’t think so. Arizona’s medical marijuana law allows registered patients and caregivers to possess marijuana, but it does not allow a third party like a club to possess a registered patient’s or caregiver’s marijuana. If the club rather than the registered patient or caregiver possess marijuana, those involved with the club could be charged with violating Arizona’s criminal marijuana laws.
I am sure there are other potential problems that I have not addressed, but the ones listed above are the most obvious. Another issue involves registered caregivers who cannot be a caregiver for more than five registered patients. A registered caregiver’s marijuana must go to one of the caregiver’s five registered patients. Is that what happens at a cannabis club?
KTAR.com: “The founder of a Phoenix cannabis club is suing Gov. Jan Brewer and State Health Services Director Will Humble. Al Sobol, owner of the 2811 cannabis club, said Humble ‘threatened’ his club last week after being asked if he felt the clubs were legal.” See “Confusion abounds in Arizona’s tricky medical marijuana marketplace” and “Marijuana club owner sues to keep doors open.”
Reason: “Today New Jersey Gov. Chris Christie announced that he will proceed with plans to allow distribution of medical marijuana by six nonprofit organizations, despite federal prosecution threats. . . . The governor said he doesn’t believe federal authorities will expend limited resources to go after people complying with state law.”
Arizona Republic: “Medical-marijuana dispensaries can’t yet operate in Arizona pending a judge’s ruling on Proposition 203. But that doesn’t necessarily keep cardholders from finding pot. At least a handful of clubs that provide patients with medical marijuana have opened up in the Valley to fill that void.”
Medical Marijuana Is Under Attack in Arizona Again — But This Time, Voters and Patients Hold the High Ground
Phoenix New Times: “One of the defining moments of the latest war on medical marijuana in Arizona came last month when Gilbert SWAT officers raided the home of a patient suspected of having a single ounce of weed. . . . 11 police officers in masks and riot gear gathered outside the home. . . . Gilbert Police Chief Tim Dorn . . . and his department either are confused about what the law says . . . Or the Gilbert PD has gone rogue”
This is well researched and lengthy article by New Times reporter Ray Stern is a must read for those following the battle over Arizona medical marijuana.
Capital Media Services: “You could soon have a marijuana club down the block or around the corner. An entrepreneur in the state’s medical marijuana industry has found what he believes is a loophole in the law that restricts distribution of the drug to just 125 specially licensed dispensaries. Allan Sobol already has opened his first club in North Phoenix and has plans with his business partners to expand elsewhere.”
What follows below is the text of Arizona Department of Health Services Director Will Humble’s July 14, 2011, blog post:
“The Arizona Department of Health Services has serious concerns about the legality of so-called cannabis clubs. The information that we have regarding these ‘clubs’ suggests that they are distributing marijuana to customers in a way that is inconsistent with the provisions of the Arizona Medical Marijuana Act, and the persons involved could be conducting illegal marijuana transactions. For this reason, we have referred this issue to the Arizona Attorney General’s Office for review and analysis by its civil and criminal divisions.”
I view this as a warning to medical marijuana clubs that give away or facilitate the giving of marijuana among people who are licensed Arizona medical marijuana patients. I cannot imagine the Arizona Attorney General who is suing the United States over medical marijuana is going to bless these clubs.
Arizona Republic: “Maricopa County Attorney Bill Montgomery on Thursday filed a motion to join the state’s request for a declaratory judgment on medical marijuana. Montgomery advised the county Board of Supervisors in a private meeting Thursday morning, urging them to take action to express the county’s position against medical pot.”
Cronkite New: “More than 7,500 Arizonans had been approved for personal medical marijuana licenses as of Wednesday, despite a well-publicized court battle that has delayed implementation of other parts of the law. The court fight between the state and federal governments has temporarily halted approval of marijuana dispensaries but not personal licenses, which had been granted to 7,570 individuals and 270 caregivers by this week.”
Considering growing your own? Many are, especially since the Governor’s lawsuit has put the dispensary process on hold.
What most don’t realize, however, is that growing marijuana inside your home or attached garage voids your homeowners insurance. There is not ONE carrier who will approve such activity.
No big deal, unless you have a claim – burglary, injured guest, fire, broken window, hail damage… if your carrier finds a grow, kiss your claim goodbye.
I had a quote request from a fellow who had leased a storefront for his dispensary; the cultivation plan included growing in his large home basement. Great security, lots of space, controlled environment, and no lease payment – all good. Except that none of my carriers, even the MMJ specialty firm, would go near this particular combination of risks.
I don’t like to tell people bad news. Ed Rosenthal’s coming to town and everyone is excited, and the hydroponics stores are thrilled. But… a better plan, and feasible at least for caregivers, is to band together and rent warehouse space, which can be insured against liability, theft, even local government raids.
Your house is your home, and should something happen, you’ll want to be reimbursed for any damages – not left holding an empty bag.
Los Angeles Times: “Marijuana has been approved by California, many other states and the nation’s capital to treat a range of illnesses, but in a decision announced Friday the federal government ruled that it has no accepted medical use and should remain classified as a dangerous drug like heroin.”
The following is Drug Enforcement Administrator Michele M. Leonhart’s the June 21, 2011, letter:
June 21, 2011.
On October 9, 2002, you petitioned the Drug Enforcement Administration (DEA) to initiate rulemaking proceedings under the rescheduling provisions of the Controlled Substances Act (CSA). Specifically, you petitioned DEA to have marijuana removed from schedule I of the CSA and rescheduled as cannabis in schedule III, IV or V.
You requested that DEA remove marijuana from schedule I based on your assertion that:
(1) Cannabis has an accepted medical use in the United States;
(2) Cannabis is safe for use under medical supervision;
(3) Cannabis has an abuse potential lower than schedule I or II drugs; and
(4) Cannabis has a dependence liability that is lower than schedule I or II drugs.
In accordance with the CSA rescheduling provisions, after gathering the necessary data, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (DHHS). DHHS concluded that marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision. Therefore, DHHS recommended that marijuana remain in schedule I. The scientific and medical evaluation and scheduling recommendation that DHHS submitted to DEA is attached hereto.
Based on the DHHS evaluation and all other relevant data, DEA has concluded that there is no substantial evidence that marijuana should be removed from schedule I. A document prepared by DEA addressing these materials in detail also is attached hereto. In short, marijuana continues to meet the criteria for schedule I control under the CSA because:
(1) Marijuana has a high potential for abuse. The DHHS evaluation and the additional data gathered by DEA show that marijuana has a high potential for abuse.
(2) Marijuana has no currently accepted medical use in treatment in the United States. According to established case law, marijuana has no “currently accepted medical use” because: The drug’s chemistry is not known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available.
(3) Marijuana lacks accepted safety for use under medical supervision. At present, there are no U.S. Food and Drug Administration (FDA)-approved marijuana products, nor is marijuana under a New Drug Application (NDA) evaluation at the FDA for any indication. Marijuana does not have a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions. At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy.
You also argued that cannabis has a dependence liability that is lower than schedule I or II drugs. Findings as to the physical or psychological dependence of a drug are only one of eight factors to be considered. As discussed further in the attached documents, DHHS states that long-term, regular use of marijuana can lead to physical dependence and withdrawal following discontinuation as well as psychic addiction or dependence.
The statutory mandate of 21 U.S.C. 812(b) is dispositive. Congress established only one schedule, schedule I, for drugs of abuse with “no currently accepted medical use in treatment in the United States” and “lack of accepted safety for use under medical supervision.” 21 U.S.C. 812(b).
Accordingly, and as set forth in detail in the accompanying DHHS and DEA documents, there is no statutory basis under the CSA for DEA to grant your petition to initiate rulemaking proceedings to reschedule marijuana. Your petition is, therefore, hereby denied.
Michele M. Leonhart,
Read the entire Denial of Petition To Initiate Proceedings To Reschedule Marijuana that follows the above letter.
Courthouse News: “The ACLU asked a federal judge to dismiss Gov. Jan Brewer’s lawsuit seeking declaratory judgment on whether the state’s voter-approved Medical Marijuana Act is pre-empted by federal law and should be struck down. The ACLU claims Arizona’s lawsuit should be dismissed for lack of jurisdiction or failure to state a claim because “state officials cannot use the federal courts as a vehicle either to validate, or to attack, their own laws.”
Arizona Republic: “Phoenix has suspended its 180-day requirement for holders of medical-marijuana permits to seek state licenses. . . . 87 applications for medical-marijuana operations came into the city since Jan. 1. Of those, only about 20 have been approved.”
Bloomberg: “When self-described serial entrepreneur Ian Christensen looks around the white-walled medical office he plans to lease in Paradise Valley, Arizona, he sees opportunity. Now all he needs is some pot. Like hundreds of other would-be marijuana moguls, Christensen courted investors, hired attorneys, negotiated leases, cleared zoning hurdles, purchased equipment and sank tens of thousands of dollars into plans to pioneer an industry Arizona voters created by referendum in November.”
ACLU Asks Federal Judge to Throw Out Arizona Governor’s Lawsuit Challenging State’s Medical Marijuana Law
ACLU: “The American Civil Liberties Union today asked a federal judge to throw out a lawsuit filed in May by Arizona Gov. Jan Brewer that seeks to have her state’s medical marijuana law struck down. In a motion filed today in the U.S. District Court for the District of Arizona, the ACLU charges that the lawsuit should be dismissed because, among other reasons, there has been no threat that state employees charged with carrying out the state’s law would be prosecuted by federal authorities. ‘On the pretext of protecting her state employees, Gov. Brewer is simply seeking to thwart the will of Arizona’s voters and unconscionably block sick people from accessing their vital medicine’,””
Read the ACLU’s Motion to Dismiss.
Governor Jan Brewer Says Feds’ New Letter on Medical Pot Proves She Took “Proper Course of Action” in Derailing Dispensary Program
Phoenix New Times: “Governor Jan Brewer believes that a ‘clarification’ by the feds on medical-marijuana programs proves she took the ‘proper course of action’ in halting the voter-approved dispensary program. . . . some representatives of the dispensary industry acknowledge that Cole’s letter presents another hurdle that will delay the full roll-out of the program as voters intended it.”
Arizona Daily Star: “A new memo from a top Justice Department official could undermine the chances of ever setting up a system of medical-marijuana growers and dispensaries in Arizona. . . . [The Department of] Justice has noticed several states have enacted laws to allow ‘multiple large-scale, privately-operated industrial marijuana cultivation centers,’ some of which could have revenues of millions of dollars a year. ‘The (earlier) memo was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law,’ Cole wrote. He said anyone in the business of cultivating, selling or distributing marijuana is violating the federal Controlled Substances Act, ‘regardless of state law.’ That also applies to those ‘who knowingly facilitate such activities,’ he said.”
KTVQ.com: “It was something Mark Higgins thought he might have to do someday, but something he was hoping to avoid. However, on July 1st, a little over a year after opening Montannabis on North 11th Street in Billings, he closed his business.”
Record Gazette: “A Beaumont medical marijuana dispensary that had been closed down by police is challenging the city of Beaumont to prove that it has done anything wrong, slapping the city with a minimum $600,000 civil suit seeking the return of what it feels were illegally collected fines of $1,000 a day. Joseph Rhea, a Palm Springs-based criminal defense attorney who represents the dispensary, Oak Tree Alternative Care, filed a civil suit at Riverside Superior Court on June 2, claiming that the city’s ordinance banning marijuana dispensaries was preempted by state law and should be considered null and void.”
Arizona Republic: “A Phoenix zoning administrator has approved a medical marijuana dispensary for Ahwatukee Foothills, despite objections from officials at two nearby schools and an area pediatrician. On Thursday, Foothills resident Matt Waltz, who owns a Tempe construction company, obtained a zoning variance for a dispensary in a shopping center at the southeastern corner of 46th Street and Chandler Boulevard.”
On July 1, 2001, Arizona Governor Jan Brewer and Attorney General Tom Horne issued the following joint press release:
“I‟m disappointed in this latest memorandum from the U.S. Department of Justice, which offers little more than continued confusion and doublespeak regarding the legality of locally-authorized medical marijuana programs in Arizona and other states,” said Governor Jan Brewer. “If this memo was an attempt at clarity, it failed.”
“Serious questions remain,” Governor Brewer continued. “Might state-licensed medical marijuana dispensaries be targeted for federal prosecution? Are state employees at risk if they license dispensaries according to state law? In light of these and other questions, the proper course of action was the one taken by the state: to place the dispensary process on-hold while we seek court guidance regarding the legality of the overall program.”
The Arizona Department of Health Services had been implementing provisions of the Arizona Medical Marijuana Act up until the agency received a letter, dated May 2, 2011, from U.S. Attorney Dennis Burke. That letter cast serious doubt on the legality of Arizona’s medical marijuana program and the potential culpability of state employees who administer the program. Governor Brewer and Attorney General Horne responded by calling a “time out” on the state‟s issuance of licenses to marijuana dispensaries, and filed a declaratory judgment asking a federal court to rule on the legality of the overall program.
That legality remains very much in question. This latest memo from Deputy U.S. Attorney General James Cole, dated June 29, 2011, notes that “persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.” The memo never addresses the potential legal culpability of state employees who administer medical marijuana programs according to state law.
“The federal government knew there was broad concern about whether ‘facilitate’ sale was a term that could endanger state employees, and they chose to remain silent,” said Attorney General Horne. “This letter represents a 180-degree turn from the Ogden memo, which said there should be low priority for those in clear and unambiguous compliance with state law, and ‘low priority’ was interpreted to mean they would not prosecute. Now they say they will prosecute those involved in distributing or ‘facilitating’ distribution, regardless of whether or not they are in compliance with state law. A federal court needs to resolve this conflict between federal and state law, as is traditionally one of the roles of the federal judiciary.”
When he was campaigning for President of the United States Barack Obama said to the Oregon Mail Tribune on March 22, 2008:
“What I’m not going to be doing is using the Justice Department resources to try to circumvent state medical marijuana laws.”
On June 29, 2011, the President’s Justice Department sent a letter to all attorneys in the Justice Department that included this statement:
“Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.”
What makes this broken promise especially bad is that the overwhelming majority of Americans favor the legalization of medical marijuana. See the ABC News story called “High Support for Medical Marijuana, which includes the results of an ABC poll released January of 2010 that found that 81% favored legalization.
Marijuana Policy Project Campaign
Today Rob Kampia, Executive Director of the Marijuana Policy Project sent an email with the subject “Betrayed.” The text of his message is below. If you oppose the Justice Department’s continued war on medical marijuana, you should click on the links in his message to voice your position to the powers that be.
Two days ago, without any public comment, President Obama broke the above campaign promise to medical marijuana patients when his Justice Department issued a new departmental policy for enforcement of federal marijuana laws in states with medical marijuana programs. Deputy Attorney General James Cole stated that while federal prosecutors should not go after sick and dying individuals, they may choose to prosecute businesses that provide marijuana to patients, even when the providers are abiding by state law.
To put it simply, this is absurd.
Please email the White House today, and ask the Obama administration to respect the rights of the states – and the needs of the patients – by leaving medical marijuana providers who act in compliance with state law alone.
Despite the memo’s claim to the contrary, it contradicts what had been official DOJ policy and flies in the face of numerous past statements by the president and his attorney general. In May 2010, Attorney General Eric Holder testified in Congress that “if the entity is, in fact, operating consistent with state law, and is not — does not have any of those factors involved that are contained in that
Deputy Attorney General memo, … [threatening to arrest the dispensary’s employees] would be inconsistent with what the policy is as we have set it out.”
Please tell the Obama administration that providing channels for patients to safely obtain their doctor-recommended medicine is a crucial component of workable medical marijuana laws. Then, please post this link to your Facebook or Twitter account. Without necessary medical marijuana providers, many patients may have to revert to buying marijuana from the criminal market.
Finally, if you were an Obama supporter in any capacity during his 2008 campaign, please call his 2012 campaign headquarters and demand that he keep his promise to medical marijuana patients.
Thank you kindly for supporting marijuana policy reform.
Marijuana Policy Project
Justice Department Clarifies Its Position on State Legal Medical Marijuana: Sellers will be Prosecuted
In a June 29, 2011, letter from James M. Cole, Deputy Attorney General, the U.S. Department of Justice has apparently “clarified” its position on whether it will prosecute people who grow and distribute medical marijuana for money while complying state legal medical marijuana laws. The answer is – YES! The complex text of the letter follows:
U.S. Department of Justice
Office of the Deputy Attorney General
Washington. D.C. 20530
June 29, 2011
MEMORANDUM FOR UNITED STATES ATTORNEYS
FROM: James M. Cole Deputy Attorney General
SUBJECT: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use
Over the last several months some of you have requested the Department’s assistance in responding to inquiries from State and local governments seeking guidance about the Department’s position on enforcement of the Controlled Substances Act (CSA) in jurisdictions that have under consideration, or have implemented, legislation that would sanction and regulate the commercial cultivation and distribution of marijuana purportedly for medical use. Some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance. You may have seen letters responding to these inquiries by several United States Attorneys. Those letters are entirely consistent with the October 2009 memorandum issued by Deputy Attorney General David Ogden to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana (the “Ogden Memo”).
The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts.
A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly, the Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term “caregiver” as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.
The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.
The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.
The Department of Justice is tasked with enforcing existing federal criminal laws in all states, and enforcement of the CSA has long been and remains a core priority.