USA / Washington:US Attorney General’s Letters of Cannabis Law

Author: Kenneth Ford

Who is Right: AG Sessions or WA Gov. Inslee?

 AG Sessions writes that the recreational cannabis industry in Washington is “incompletely regulated.”1Washington Governor Jay Inslee refutes the claims Sessions is making calling them, “outdated, incorrect or based on incomplete information.”2 In support of his concerns Session’s letter appears to rely solely on the 2016 Northwest High Intensity Drug Trafficking Area (HIDTA) “Washington State Marijuana Impact Report.” Inslee reiterates that Washington’s cannabis laws are modeled after the 2013 Cole Memorandum eight priority areas of:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;
  • Preventing marijuana possession or use on federal property.3

In response, Sessions writes, “I also read…that you believe that the 2013 Cole Memorandum, its eight enforcement priorities, and related memoranda are an ‘indispensable’ part of the ‘framework’ in your state. In that regard, I would note the concluding paragraph: ‘nothing herein [in the Cole Memorandum] precludes investigation or prosecution’, even in the absence of any one of the factors listed above…”4

It’s hard to ascertain who is right, AG Sessions or Gov. Inslee on their standing because both express valid points. But, Sessions is seeking a resolution to his concerns and wants Washington State to address the findings in the HIDTA report.5 Looking further into the HIDTA report and Washington’s cannabis laws there are errors or concerns that support both sides.

Misleading HIDTA Data

At first glance, some of the statistics in the HIDTA report sound very alarming, but as you look at the parameters and the variables that come into play the numbers do not look so staggering. For example, Sessions quoted the statistic that “during 2013-2014, 48% of statewide student expulsions and 42% of suspensions directly involved marijuana.”6 However, this only includes drug expulsions and suspensions, data regarding bullying, fighting, or other behaviors are not included. HIDTA also reported that from 2010 to 2014, 3,027 drivers were involved in deadly crashes. Blood tests were conducted by the Washington State Toxicology Laboratory on 1,773 of the drivers. The number of drivers who tested positive for alcohol, marijuana, or drugs was 1,061 0r 59.8%.7 The report is quoted as saying, “[m]arijuana was the most commonly found drug among the tested drivers.” However, marijuana only or marijuana in combination with another drug was found in only 349 drivers. Whereas, alcohol or other drugs accounted for over 700 of the other occurrences. The HIDTA report does not provide the number for alcohol only or in combination with another drug fatal car crashes. Lastly, according to the report since 2012, marijuana has been found in over 40 different states.8 This statistic seems broad and ambiguous because the report does not go into more detail as to how the cannabis was diverted to other states. As one article mentioned, “Sessions’ numbers could very well include a tourist’s attempt to bring a vape pen home on an airplane.”9 It seems a bit overbearing to hold the state responsible for such infraction if that is the case, because in the aforementioned tourist scenario this would occur at an airport, which falls under federal law.

Washington Cannabis Laws

Washington could probably use more manpower to enforce the Cannabis laws throughout the state. The Washington State Liquor and Cannabis Board (WSLCB) is the agency that oversees the cannabis regulatory scheme. “There are five examiners employed by the WSLCB who are assigned to oversee the state’s recreational marijuana industry. This includes checking inventory, shipments, transports of product, ensuring testing standards have been met, and the overall accountability of the market. More importantly, it is intended to ensure that marijuana is not being sold illegally.”10 There are over 700 cannabis businesses throughout the state with only five examiners covering them. It is a heavy burden for only five people to ensure compliance with state cannabis laws with eight different Cole Memorandum’s priority areas in mind.

The Washington Administrative Code (WAC) 314-55-110 attempts to provide by answering the question, “What are my responsibilities as a marijuana licensee?”11

Section (3) of the WAC lists the following laws that cannabis businesses have to be in compliance with:

  1. Titles 9 and 9A RCW, the criminal code;
  2. Title 66 RCW, the liquor laws;
  3. Chapters 70.155, 82.24, and 82.26 RCW and RCW 26.28.080, the tobacco laws;
  4. Chapter 69.50 RCW, the uniform controlled substances laws; and
  5. Chapter 69.51A RCW, the medical marijuana laws.

As a cannabis business in Washington you have to also comply with the liquor laws and tobacco laws of the state. This amounts to heavy regulation on the cannabis industry and confusion because some of the laws will not apply or not applicable to a cannabis licensee. Washington should provide a more streamlined regulation and rules for the cannabis industry. There are too many statutes and rules that the cannabis industry has to filter through to actually figure out which ones do apply. It’s easy to break a rule if you did not know the rule. Pertinent rules presented in a condensed manner may afford Washington better compliance with its cannabis laws.

As Attorney General Sessions and Gov. Inslee send each other letters concerning the state of the cannabis industry in Washington it will be interesting to see what comes of this. Both are fighting for American citizens and their rights in this country. In order for any structure, product, or industry to reach a certain level of quality it requires criticism and changes. There is value in Sessions demanding a more complete regulatory scheme by Washington. And it is vital for Governor Inslee and other legal cannabis states to fight back and make the federal government aware of their “outdated” information and misguided policies.











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Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild