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Jeff Sessions Challenges State Programs

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Sessions Sends Letter to Washington Governor and Attorney General Re: State Marijuana Program

Earlier this year, Washington Governor Jay Inslee and Attorney General Robert Ferguson, wrote to Attorney General Jeff Sessions regarding the status of state medical and recreational marijuana programs under the Trump administration. In August, the Huffington Post obtained Attorney General Sessions’ response to Governor Inslee’s letter, citing numerous findings from the ”Washington State Marijuana Impact Report.” According to Sessions, the 2016 report, conducted by the Northwest High Intensity Drug Trafficking Area, “raises serious questions about the efficacy of marijuana ‘regulatory structures in [Washington] state.”

The findings provided in the letter, if factually true and accurate, would indeed violate the Cole Memorandum’s eight enforcement priorities, thus providing DOJ officials with an incentive to crack down on Washington’s recreational and medical marijuana industry. However, as Governor Inslee and AG Ferguson noted in an August 15th letter to Attorney General Sessions, the AG cites outdated, incorrect, or out-of-context data to come to every single one of the “concerning findings” noted in his letter.

The letter begins by stating that the Washington medical marijuana market is “‘grey’ due to the lack of regulation and oversight,” which has [according to Sessions] “unintentionally led to the growth of black market enterprises.” The letter also states that the “recreationally licensed marijuana market” is “incompletely regulated,” as a result of the “failure to utilize and/or maintain traceability of marijuana products.” First, Washington revamped its medical marijuana program in July 2016, which included more stringent regulatory requirements. Washington is also in the process of implementing a new seed-to-sale tracking system for both the medical and recreational marijuana program, and this system will be in place no later than October 31, 2017, according to the Washington State Liquor and Cannabis Board.

The letter then goes on to state: “Since legalization in 2012, Washington State marijuana has been found to have been destined for 43 different states.” This statistic is unclear, as it is not apparent whether the sources of marijuana were legal or illegal, and according to Washington state officials, the data was collected from a time period that began several years before recreational marijuana sales commenced in the state.This is yet another dead end for Sessions, as it is not really clear what he is claiming about diversion to other states.

The letter then addresses the issue of marijuana and minors, beginning with a claim that “90% of public safety violations for recreational marijuana licensees involved minors,” including “sales to minors and employment of minors.” However, the letter only glosses over the fact that this data is from the first year of Washington’s recreational marijuana laws, so they didn’t even have current data to support this finding. The letter then states, according to the most “recent data in the report,” “one in five 10th grade students report[ed] riding with a driver who had used marijuana—9% reported driving within three hours of consumption.”

The letter then cites another finding from the report, which is based on data from the first year of the recreational marijuana program: “49% of young adult drivers who used marijuana in the past month had driven a car within three hours after using marijuana.” It goes on to state that “64% of marijuana DUIs in Spokane Valley involved youth.”

The letter continues with “61.9% of drivers do not believe marijuana makes a difference in their driving ability” and goes on to cite a finding that “drivers with active THC in their blood involved in a fatal driving accident” increased 133.2% from 2010 (16) to 2014 (23).” While one might be concerned by this last part, it is not as dramatic as Sessions suggests here, given that this represents seven additional drivers with active THC in their blood over a course of four years. That is about 2 additional drivers per year, and even if that is true, this does not mean that these drivers were responsible for the fatal driving accident, as they were only “involved.” Additionally, this finding fails to show whether the driver tested positive for alcohol, or was found to be over the legal limit, and also whether other drugs besides marijuana were found in their system. Governor Inslee and AG Ferguson’s letter notes that blood testing for THC at DUI traffic stops was “substantially less common” prior to recreational legalization, so comparable statistics pre-legalization do not exist. Additionally, in response to the letter’s finding that “61.9% of drivers do not believe marijuana makes a difference in their driving ability,” the letter from Governor Inslee and AG Ferguson notes that this number is misleading, as it is only 6.7% of all drivers, but 61.9% of drivers who have ever used marijuana within two hours of driving.

The letter also states that “17 THC extraction labs exploded” in “2014 alone,” and notes that there was a “54% increase in the number of marijuana calls to the State Poison Center from 2012-2014.” If Sessions really looked in Washington’s program, he would know that the recreational marijuana program was not up and running until July 2014, so we should really be looking at the data from after 2014. Governor Inslee and AG Ferguson’s letter states that none of the extraction lab explosions occurred on lawful state-licensed THC extraction labs, and there have been no explosions at state-licensed THC extraction labs.

Ironically, Sessions concludes by stating he wants to continue the “dialogue on this important issue,” specifically regarding the state’s plan to address the above findings so that Washington’s recreational marijuana program is able to combat diversion of marijuana, protect public health and safety, and prevent marijuana use among minors. While this might seem frightening to those in the industry, it really shows how far the AG has come in terms of “cracking down” on marijuana. With phrases like “engaging” in “dialogue,” and “I look forward to working with you on these issues,” it seems like the industry should start to feel less fearful of a Sessions-sponsored crackdown. Just a few years ago, he was claiming that only bad people smoked marijuana.

Stay tuned as we continue to follow the Trump administration’s directions with respect to the recreational and medical marijuana industry.

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Green Light Attorneys Perry N. Salzhauer, Daniel Shortt, and Brittany Adikes have joined McGlinchey Stafford