Massachusetts Federal Prosecutor Announces His Intent Not to Prosecute State-Licensed Cannabis Commerce

The illegality of cannabis commerce -- medical and nonmedical -- under federal prohibition law has not changed, but the enforcement practices of federal prosecutors has changed. See the federal law article under the law tab on this website. Earlier this year (2018), the US Justice Department announced the recission of the formal forbearance from prosecuting state licensed cannabis commerce, medical and nonmedical. The intent of the recission was to enable local federal prosecutors to bring criminal and civil enforcement actions against all cannabis cultivation and distribution, regardless of state licensing or legality.

Under this new federal policy, in states where cannabis commerce now is legal, state licensed marijuana businesses (and applicants for state licenses) have cautiously monitored their local federal prosecutor for guidance on how federal prohibition law will be applied to their work. From the Boston Globe:

The top federal prosecutor in Massachusetts gave an apparent green light Tuesday [July 10, 2018] to the state’s recreational marijuana industry, lifting some of the legal uncertainty hanging over the drug’s imminent commercialization. Andrew Lelling, the US attorney for Massachusetts, said his office would instead focus its resources on fighting the opioid addiction crisis, which claimed more than 2,000 lives here last year.

In a statement, Lelling cautioned he wouldn’t explicitly exempt businesses or individuals from federal laws banning cannabis. But he suggested his office would focus its marijuana enforcement efforts on just a few key areas: the overproduction and diversion of pot to other states, “targeted” sales of the drug to minors, and organized crime — all illegal under state laws and regulations, too.

This announcement does not change federal prohibition law, nor does it grant permanent federal immunity to state-licensed cannabis commerce. Lelling's public statement does, however, provide some relief to entrepreneurs; they may invest and do business for the time being without fear of federal law enforcement, provided they comply with state legalization law including G.L. c. 94G.

Even this prosecutor's commitment does not end all risk for cannabis commerce in Massachusetts. With the support of a private prohibition-advocacy group, several Cambridge commercial abutters -- including the Crimson Galleria -- have sued a state-licensed medical marijuana retailer, Healthy Pharms, located in Harvard Square. They are suing the licensee under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act, which enables private entities or people to bring civil claims for violations of federal criminal laws. The abutters claim that the licensee's operation, despite its state legality, violates the federal prohibition laws and harms their property values. Similar claims are pending in at least one other federal court in Colorado.

The outcomes of the Cambridge case and the Colorado case are uncertain and may take a year or more to be resolved. One resolution could be Congressional action to change federal prohibition law, to protect state-legal cannabis commerce from federal interference.