Cannabis: Understanding the Cole Memorandum and the Interplay of Federal and State Law

Twenty three states and the District of Columbia now have laws making the use of medical cannabis lawful, under certain circumstances. Four states and the District of Columbia have passed laws legalizing recreational use of cannabis. In addition, anticipated ballot initiatives in Ohio, California, and anticipated legislation in Vermont, Massachusetts, and Rhode Island may result in legalized adult use of cannabis in several other states. 

Despite this activity at the state level, the Federal Controlled Substances Act (the “CSA”) applies nationwide, and, under the CSA, the cultivation, processing, distribution, and sale of cannabis is unlawful, regardless of applicable state law. In recent years, the U.S. Department Of Justice (“DOJ”) has issued a number of memoranda addressing the enforcement of the CSA of those operating in compliance with state cannabis laws. Attorneys who represent those in the cannabis industry, or those seeking to participate in that industry, must be familiar with the ideas governing the interplay of Federal and state law and those DOJ memoranda, and this course will address those topics. 

Join Hanan Kolko for a discussion of these issues. Mr. Kolko, a New York City-based shareholder at Meyer, Suozzi, English & Klein and a co-chair of that firm’s Cannabis Practice, is also a member of the National Cannabis Bar Association.       

Learning Objectives:  

I.     Grasp the basics of the Controlled Substances Act (”CSA”) and its applicability to cannabis

II.    Appreciate the relationship between the CSA and state cannabis laws and the applicability of the doctrines of Federal supremacy, Federal preemption, and the bar on commandeering

III.   Become familiar with the DOJ memoranda, including the “Cole Memorandum”

IV.   Understand offshoots of the Cole Memorandum such as memoranda on banking and the applicability of the CSA to cannabis businesses operating on reservations   

V.    Recognize the risks presented by the current system

VI.   Gain familiarity with pending legislation that might change the interplay between Federal and state laws

This course originally appeared as a part of our October 2015 Bridge the Gap Event.