On August 29, 2013, Deputy Attorney General James Cole issued a guidance memo to U.S. Attorneys regarding enforcement priorities of the Department; specifically in regards to the Controlled Substances Act (CSA) in states that have established a regulatory scheme for the cultivation and distribution of marijuana and marijuana products. The memo follows previous guidelines for medical marijuana enforcement priorities.

The memo states that while it is the intent to the Department to continue to enforce the CSA, the focus of that enforcement should remain on activities that are not governed by a state law. Citing limitations on resources and the inability to coordinate with local law enforcement on investigations and prosecutions in jurisdictions that have made legal certain activities, the Department has determined that comprehensive regulatory schemes that are provided adequate resources may in fact assist in federal law enforcement priorities.

The Department will continue to enforce the CSA in jurisdictions that have not established marijuana regulations as well as against individuals who are not operating with strict compliance to a state law. Further, within jurisdictions that have established a law, the Department has indicated activities that will remain a federal interest including but not limited to:

  • Diversion of marijuana to minors
  • Diversion of marijuana into jurisdictions where possession remains illegal under local law
  • The use of the regulated system to disguise a criminal enterprise
  • Incidents of violence
  • Negative impacts on the public safety including driving under the influence
  • Cultivation of marijuana on federal lands

In recent years, U.S. Attorney’s have used the size of a state regulated marijuana operation as a proxy for a violation of the previous Cole and Ogden memos. In this memo, the direction is that this practice be discontinued unless the above indications are present. The Department finally, indicates that their interest lies not only in the activity of persons engaged in the cultivation and distribution of marijuana but also in the state agencies governing such activities. Should such agencies be incapable of regulation or there are insufficient resources for such agencies, the Department may take action against the regulatory structure itself.

Should the state tax measures pass, the Colorado Department of Revenue’s Marijuana Enforcement Division -which will receive a $5 million annual appropriation each year through 2018 should have sufficient resources for robust regulation and enforcement.