Detente over pot laws may go up in smoke after 2016 election

By Jennifer Yachnin | 09/18/2015 07:09 AM EDT

DENVER — Would-be presidents love to tick off the things they plan to do on their first day in office: repeal regulations, undo the executive orders of their predecessors and disavow the Iran nuclear agreement, among other things.

But for owners and advocates of legal marijuana use in states like Washington and Colorado, there’s a key issue President Obama’s successor will need to take up ASAP: how to manage the conflict between state and federal drug laws.

"With the upcoming election, one of the things that we’re feeling is that there is a little bit of exposure. We are operating on a series of memos and sort of a sense of mutual understanding that if you follow the laws, if we abide by what the state requirements are, that the priority will be focused on the bad apples," Good Meds Network owner Kristi Kelly said yesterday at a "marijuana legalization listening session" organized by former Maryland Gov. Martin O’Malley, a Democratic presidential primary contender.


While Colorado voters legalized recreational marijuana use in a 2012 ballot initiative — the drug had previously been permitted for medical use in the state — it remains illegal under federal law.

That means that while Colorado residents over the age of 21 may purchase up to an ounce of the drug from numerous retail outlets, they could also be charged with a crime for possessing the substance.

The Obama administration sought to ease conflicts with Colorado and Washington state laws — and soon Oregon, where recreational sales of marijuana begin next month — via a 2013 memorandum that assured federal agents would not target individuals in possession of "small amounts of marijuana for personal use on private property."

Instead, Deputy U.S. Attorney General James Cole wrote that the government would continue to focus on criminal enterprises including gangs and cartels, along with curbing the farming of marijuana on federal lands.

But when the Obama administration ends in early 2017, those memorandums will effectively expire, leaving marijuana growers and distributors concerned about their livelihoods.

"That’s the question everyone is trying to figure out," University of Denver law professor Sam Kamin told E&E Daily. "A lot of people are hoping there will be a little more guidance from the federal government between now and then, whether it’s through legislation or rescheduling."

Under current Food and Drug Administration guidelines, marijuana is known as a "Schedule 1" drug, or a substance without an acknowledged medical use. Rescheduling the drug would lower its classification into one of four other categories, which range from highly controlled substances like oxycodone to medicines such as cough syrups with small amounts of codeine.

Kamin, the Vicente Sederberg professor of marijuana law and policy, added that federal legislation could also address other outstanding conflicts over legalized marijuana, including the inability of retail businesses to use federally insured banks — effectively restricting marijuana sales to a cash-only business model — as well as the ability for employers to drug test and fire employees found using the drug even in states where it has been allowed.

"I think that part of the concern is, there are these promises not to prosecute, but that’s not really enforceable," Kamin said. "There are lots of consequences of continued illegality even if no one is currently going to jail."

Christie talks tough

To date, New Jersey Gov. Chris Christie (R) is the only presidential primary contender who has vowed to aggressively attack existing state laws legalizing recreational marijuana use.

"If you’re getting high in Colorado today, enjoy it. As of January 2017, I will enforce the federal laws," Christie said in July at a New Hampshire campaign event, according to media accounts.

During the GOP presidential primary debate sponsored by CNN on Wednesday, Christie reiterated his opposition to recreational marijuana use while touting his support for a medical marijuana measure in his home state.

Christie also boasted about efforts in his state to direct first-time drug offenders to rehabilitation rather than jail time. He later added: "That doesn’t mean we should be legalizing gateway drugs."

During the Republican debate, both former Hewlett-Packard CEO Carly Fiorina and Kentucky Sen. Rand Paul said they would not seek to undermine the state laws, framing the issue as one of states’ rights.

"I don’t think that the federal government should override the states. I believe in the 10th Amendment and I really will say that the states are left to themselves," said Paul, who held a fundraiser with the National Cannabis Industry Association earlier this year.

Whether Congress could pass legislation to shore up the legal drug industry in those states during a presidential election cycle likely remains an uphill battle.

Nonetheless, Reps. Jared Polis (D-Colo.) and Earl Blumenauer (D-Ore.) introduced a pair of bills earlier this year: H.R. 1013, aimed at legalizing marijuana at the federal level — by calling for the substance to be regulated like alcohol rather than a controlled substance — as well as H.R. 1014, which would allow the federal government to tax the sale of non-medical marijuana.

Rep. Diana DeGette (D-Colo.) is set Monday to reintroduce a measure she sponsored last Congress with Rep. Mike Coffman (R-Colo.) aimed at preventing the federal government from pre-empting Colorado’s marijuana laws. The "Respect States and Citizens Rights Act" would amend the Controlled Substances Act by inserting a special provision noting that state marijuana laws, including criminal penalties, should supersede federal law in jurisdictions that have adopted specific policies.

Kelly, the owner of the Colorado-based Good Meds Network, said marijuana businesses in the state would like to see the drug rescheduled.

"We are looking for counsel and leadership and partnership to help resolve these kinds of issues and give us the sense of security," Kelly said.

But she suggested that O’Malley’s preferred option of reclassifying marijuana to a Schedule II drug — a highly controlled substance that would require a pharmacist to distribute — could undermine existing businesses.

"It would effectively legislate us all out of business," Kelly told E&E Daily, adding that her business has even looked into whether it could become a pharmaceutical corporation if needed.

But Colorado state Rep. Jonathan Singer (D), an early advocate for the marijuana legalization, praised the attention Colorado has received for its efforts and said he hopes the conversation will prompt action on the conflicting laws.

"Any presidential candidate who ignores this issue … or seeks to turn back the clock on what Colorado has achieved does so at their own peril," Singer said.

During yesterday’s campaign event, O’Malley, a former prosecutor, acknowledged that using executive authority to reschedule marijuana to a highly controlled drug could create shock waves in the industry but said he has not reached support for full legalization yet.

"Progress zigs and zags, doesn’t it?" he said.