New federal memo targets dispensaries


A Department of Justice official has issued a new memo that seems to place medical marijuana dispensaries squarely in the crosshairs of federal agents.

The memo, written by Deputy Attorney General James M. Cole, was issued on June 29 in an effort to clarify what is known as the “Ogden memo.”

That Oct. 19, 2009, letter — referred to as the “Ogden memo” because it came from U.S. Deputy Attorney General David Ogden — has served as the law of the land when it comes to how the Obama administration intends to deal with medical marijuana in states where its use is authorized. (Marijuana remains illegal as a schedule I controlled substance under federal law.)

In an environment of limited resources, the Ogden memo says, the Department of Justice is primarily concerned about “significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks.”

The Ogden memo says federal resources should not be focused on “individuals whose actions are in clear and unambiguous compliance” with state marijuana laws, and it differentiates between the individual patient/caregiver and large-scale operations, including questionable dispensaries hiding behind state laws.

“For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources,” the memo states. “On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department.”

The new Cole memo reiterates that dispensaries could be subject to prosecution.

“The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed,” Cole writes in the letter to U.S. attorneys. “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.    

“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.”