The Washington PostDemocracy Dies in Darkness

‘Is this stuff legal?’ Federal position on pot makes situation foggy, draws pushback

Cannabis consultant Juan Aguilar helps customers shopping for marijuana products in the Herban Legends shop on Thursday in Seattle. (Elaine Thompson/AP)

PORTLAND, Ore. — The simplest question among pot smokers — is this stuff legal? — doesn't have a crystal-clear answer anywhere in America. In many places it is now simultaneously legal and illegal, the same way physicists will tell you (shifting here to a 3 a.m. dorm-room discussion) that light is both a particle and a wave.

Eight states have legalized recreational marijuana for people age 21 and older, with California joining that group Jan. 1. Other states allow the cultivation and distribution of pot for medicinal use, and many have taken steps to decriminalize marijuana possession.

But under the federal Controlled Substances Act, it's the same weed it's always been, a "Schedule 1" drug that is illegal to possess, much less grow or distribute.

And the situation just became a whole lot foggier.

Attorney General Jeff Sessions this week took on the marijuana industry by rescinding enforcement guidelines that had been issued by the Obama administration. Those guidelines had finessed the state-federal conflict by saying, in effect, that federal prosecutors wouldn't go after people who complied with state laws, but would instead concentrate on drug cartels, money laundering and other high-priority targets.

Use of legalized marijuana threatened as Sessions rescinds Obama-era directive that eased federal enforcement

In canceling the Obama-era policies, Sessions gave U.S. attorneys across the country full discretion to pursue criminal cases involving marijuana. In a memo, he said the federal pot statutes "reflect Congress's determination that marijuana is a dangerous drug and that marijuana activity is a serious crime."

But proprietors, activists and consumers said such words aren't going to shut down the burgeoning marijuana industry.

In Portland, Ore., sales manager Kevin Yearout of Stone Age Farmacy — where the marijuana sells for $10 a gram and you can buy pot-infused gummies, caramels, jellies, lemonades, taffy, chocolate and cakeballs with "cannabutter" — said he smells corporate influence behind the Sessions announcement.

"It goes back to pharmaceuticals," he said. "They want people to take pills and they can make money."

Nearby, at Five Zero Trees — a pun invoking Oregon's first area code — the manager, Josh Sisco, proudly showed off some of the store's most popular strains, including Cherry Kush and Mt. Hood Magic Durban Poison. He said Sessions's decision will boost sales.

"It's like back when people said Obama was coming for everyone's guns, and gun sales spiked," he said.

In Los Angeles, at New Amsterdam Naturals, a licensed medical marijuana shop, the management declined a request for comment. But customer Deborah Harrison was happy to opine on Sessions as she entered the store.

"I could care less what he thinks," Harrison said. "This is California, and we are going to do what we do here. He can push it if he wants to, and we can secede from the union."

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Tom Miller, a pipe layer in the natural gas industry, spent part of Friday morning at Boulder Botanics in Colorado, examining canisters of cannabis with strains named Gorilla Glue, Big Bubba Diesel and Dawg's Waltz. The weed sells for $150 to $250 an ounce, and Miller said he wanted to try it all. He had just arrived in the state, which has embraced legal sales.

"It helps more than opioids," he said, citing his home state of West Virginia's struggle with opioid abuse. "They could use this instead of being hooked on opioids. Everyone's on pills."

Marijuana is legal in much of the West, as well as in Massachusetts and Maine. In the District of Columbia, people 21 and older can grow, possess or give away modest amounts of it, and smoke it legally at home. Medical marijuana is legal and strictly regulated in the District, but selling pot for recreational use is still illegal. It also remains illegal on federal property.

State laws vary, with some treating marijuana as if it were no more a drug than alcohol. There are still major kinks in the law for marijuana entrepreneurs, who struggle to find banks willing to take their money — and wind up carrying brown paper bags of cash to pay their utility bills, said Jonathan Robbins, an attorney with Akerman LLP, where he is chair of the Cannabis Practice Group.

Robbins emphasized that the decision by Sessions does not change any of the nation's marijuana laws; this was purely a policy change at the Justice Department.

"There certainly is less clarity," Robbins said. "We don't know as we sit here today what the practical effect of Mr. Sessions's pronouncement is going to be."

His legal advice to marijuana growers and distributors: "It's very, very important that any folks who are operating in this space go to great lengths to make sure they are fully compliant with the laws of the states in which they operate."

Patrick Moen, a former Drug Enforcement Administration agent who is now general counsel for Privateer Holdings, which invests in the legal cannabis industry, said the Sessions move is largely symbolic, noting that the Justice Department did not send out a directive to crack down on marijuana. Moen does not think the DEA will ramp up marijuana enforcement, particularly given how closely the federal agents rely on their local and state partnerships in drug task forces.

"I would be shocked if there is anyone at the agency that is interested in prioritizing cannabis investigations," Moen said. "It is not an effective use of time and resources. And it's fraught with political peril."

‘Cannabis will be everywhere’ California towns scramble to prepare for legal marijuana

California Attorney General Xavier Becerra, asked Friday whether marijuana use is legal in his state despite the federal law, was emphatic: "In the state of California, it is legal."

But what about the federal statutes?

"The federal government is not the state of California," he said.

Becerra said he has reached out to the four U.S. attorneys in California, hoping to discuss the issue and to seek ways to work together to focus on black-market marijuana operators and people who do not abide by the state's laws, which made recreational marijuana legal this week. "There's no need for us to butt heads," he said.

Speaking by phone from Steamboat Springs, Colo., Serge Chistov, an investor in northwest Colorado's Honest Marijuana Co., said the three local marijuana dispensaries had opened for business and no one seemed to fear being raided by federal agents.

Chistov said of the Sessions announcement: "This is nothing but a bark. Genie's out of the bottle. Ain't going back in the bottle. Too much money."

Blakemore reported from Boulder, Colo., and Achenbach reported from Washington. Rob Kuznia in Los Angeles contributed to this report.