Trump administration puts recreational marijuana in crosshairs

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PUBLISHED: FEB 23, 2017, 2:14 PM

By Alicia Wallace, The Cannabist Staff

States where recreational marijuana is legal will be subject to “greater enforcement” under the Trump administration, White House spokesman Sean Spicer said Thursday.

But watchers of Colorado’s billion-dollar weed industry are waiting to see whether Spicer’s statements during his daily briefing actually yield a real shift in enforcement policy.

“There’s a big difference between (medical marijuana) and recreational marijuana, and I think when you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people,” Spicer said, giving the first glimpse of the new administration’s views of the growing legal cannabis industry. “There is still a federal law that we need to abide by in terms of recreational marijuana and other drugs of that nature.”

Marijuana remains illegal under federal law, although voters in Colorado and seven other states and Washington, D.C., approved measures to legalize recreational pot sales and consumption. Medical marijuana is legal in 28 states, Puerto Rico, Guam and the District of Columbia. Public opinion has grown more favorable on the topic, as seen in a Quinnipiac poll released earlier Thursday, which found 71 percent of Americans surveyed would oppose a federal crackdown on legal marijuana, and 93 percent are in favor of medical marijuana.

When asked about increased enforcement around recreational pot, Spicer said: “That’s a question for the Department of Justice. I do believe that you’ll see greater enforcement of it.”

Mark Bolton, marijuana advisor to Colorado Gov. John Hickenlooper, said it would be premature to speculate about the administration’s intentions.

“We have worked with the Department of Justice since legalization to develop a framework that respects voters and promotes public safety,” he said in an e-mail.

Brookings Institution drug policy expert John Hudak said the White House statement “is not a death knell for recreational marijuana, nor is it clarification.”

Hudak said a troubling aspect of the briefing was Spicer’s “clear lack of understanding of federal law.”

Spicer claims there’s a difference between medical marijuana and recreational marijuana, Hudak said.

“I think it’s true in practice, it’s true in public opinion, but it’s not true in federal law,” Hudak said. “Medical marijuana is just as illegal as recreational marijuana.”

And yet, the Rohrabacher-Farr Amendment keeps the Department of Justice from spending money to enforce the Controlled Substances Act in medical marijuana states, he said.

“I think what is said from the podium and what happens in policy often have a disconnect,” Hudak said.

Pushing back in Congress

Uncertainty has lingered for months around how the Trump administration might handle the topic of marijuana legalization.

“The president has said time and again that the decision about marijuana needs to be left to the states,” U.S. Rep. Jared Polis, a Boulder Democrat, said in a statement about Spicer’s comments. “Now either the president is flip-flopping or his staff is, once again, speaking out of turn. Either way, these comments leave doubt and uncertainty for the marijuana industry, stifling job growth in my state.”

Polis is a member of the congressional Cannabis Caucus, along with Earl Blumenauer, D-Oregon, whose state started recreational sales in the fall of 2015.

“The national prohibition of cannabis has been a failure, and millions of voters across the country have demanded a more sensible approach. I’m looking forward to working with the leadership of our newly formed cannabis caucus to ensure that these wishes are protected,” Blumenauer said in a statement.

Colorado, which in 2014 became the first state to initiate recreational marijuana sales, recorded $1.3 billion in medical and recreational cannabis sales in 2016. Sales nationwide are projected to reach $24.5 billion by 2025, according to a report issued earlier this week by industry analytics firm New Frontier Data.

Adhering to Cole Memo for now

After winning the election, President Donald Trump nominated Alabama Sen. Jeff Sessions a vocal opponent of legalization, as the nation’s attorney general. This raised questions about the direction the Department of Justice would take regarding the 2013 Cole Memo, which established guidance for when federal prosecutors should enforce U.S. marijuana laws..

All U.S. attorneys, including Bob Troyer, the acting U.S. attorney for Colorado and Wyoming, operate under the Cole Memo. While Spicer’s comments Thursday indicated new guidance may be coming, nothing new has been handed down.

“We will follow that guidance until, if or when, we receive new or amended guidance,” said Jeff Dorschner, a spokesman for the U.S. Attorney’s Office in Colorado.

Washington Attorney General Bob Ferguson said, “I will resist any efforts by the Trump administration to undermine the will of the voters in Washington state.”

Trump has wavered on the marijuana legalization issue, but said on the campaign trail that he favors states’ rights and would not interfere even with legal recreational-use states such as Colorado.

Andrew Freedman, a marijuana regulations consultant who previously served as Colorado’s director of marijuana coordination, said that it would be a very complicated exercise — especially legally — to unravel the regulations put in place by states such as Colorado, Washington and Oregon. The federal government also would be going against the will of voters who told their states to develop regulations, he said.

“States are set up to be laboratories of democracy,” he said.

States argue that by regulating the sale of pot they can help ensure public health and safety.

Freedman worries that if the feds try to undo the regulated pot industry, “in that vacuum it would be the black market that comes in to fulfill the supply.”

Dan Anglin, the chairman of the Colorado Cannabis Chamber of Commerce, said he was surprised by Spicer’s statements. A crackdown would harm the president’s popularity considering that legalization has broad support across the nation, he said.

“The administration has its hands full with a lot of other things which they intended to change,” he said. “This didn’t seem like something that was at the top 100 of President Trump’s list.”

Anglin didn’t expect an immediate crackdown, but said he wouldn’t be surprised if cannabis businesses received legal notices to stop selling and growing. If that does happen, he said he hopes Attorney General Cynthia Coffman will step up to defend Colorado’s constitution.

In the meantime, Anglin said it will be business as usual at his Boulder edibles company, Americanna.

As a voting Republican, Anglin said he was disappointed by the federal government stepping in on what he called a states’ rights issue.

“If we were issued a federal order to cease and desist, we would,” Anglin said. “However, I would imagine that many of us — if not all of us — would join in a suit against the federal government for making such a decision.”

Nevada Senate Majority Leader Aaron D. Ford released a statement saying Nevada Attorney General Adam Laxalt “must make it immediately clear that he will vigorously defend Nevada’s recreational marijuana laws from federal overreach. Not only did voters overwhelmingly vote to approve the legalization of recreational marijuana, the Governor’s proposed education budget depends on tax revenue from recreational marijuana sales. Any action by the Trump administration would be an insult to Nevada voters and would pick the pockets of Nevada’s students.”

Tom Angell of drug law reform group Marijuana Majority said: “If the administration is looking for ways to become less popular, cracking down on voter-approved marijuana laws would be a great way to do it. On the campaign trail, President Trump clearly and repeatedly pledged that he would leave decisions on cannabis policy to the states. With a clear and growing majority of the country now supporting legalization, reneging on his promises would be a political disaster and huge distraction from the rest of the president’s agenda.”

Denver Post staff writers Danika Worthington and Noelle Phillips contributed to this report.