We Have A Huge Amount Of Public Support For Marijuana: Part Two of An Interview With Cannabis Advocate Rod Kight

Recently cannabis advocate and lawyer Rod Kight garnered some national headlines when he sent an impassioned letter to United States Senator Thom Tillis (R-NC) supporting two bills which would effectively legalize marijuana at the federal level. Tillis, in his much-publicized response to Kight, made a vow to “carefully consider” the issue and make a decision based on what he feels is best for his constituents in North Carolina and the country at-large.

In part two of our interview with cannabis advocate Rod Kight, author of the definitive word on weed, Kight on Cannabis, we discuss United States Attorney General Jeff Sessions, the future of legalized marijuana, and the inherent ability of politicians to dodge the issue.

If I could jump into some of the big picture questions - last month U.S. Attorney General Jeff Sessions announced the Justice Department would no longer abide by the policy known as the “Cole memo.” Help us separate fact from fiction on what this means for cannabis businesses in the U.S. today.

Under the Obama Administration, Deputy Attorneys General Ogden and Cole issued what they called memos about prosecutorial priorities. As we all know, marijuana, is illegal under federal law-- so are a lot of things, and the Justice Department is charged with the duty of enforcing those laws. The DEA will come out and arrest people for using or selling illegal drugs, of course, but Justice Department is like any other agency in the world, it has funds, and it needs to use those funds and resources in a way that's most productive and that makes the most sense from a policy perspective. What these memos effectively did is they said there are certain categories of marijuana use, they are a lower priority as far as enforcement than other types of use. First and foremost, the opioid epidemic is a much higher priority than marijuana use, just as a broad-based example, and the Justice Department is generally more concerned with opioids than marijuana.

But within marijuana specifically, the Justice Department is concerned about a few different things. One is that it doesn't want the marijuana trade to be a front for other drugs. It doesn't want the marijuana trade to enrich organized crime. It doesn't want marijuana to get into the hands of minors and so on and so forth. So, these memos said if these parties are state compliant and are not feeding money to organized crime or selling marijuana products to kids, we're going to not enforce marijuana laws against those parties. That's the basis of the memos and that's a general summary of them.

What Jeff Sessions did is he said, we revoke those memos. So we no longer have this priority scheme. Now marijuana use and sale are illegal whether you're compliant with state laws, whether you could be the best actor in the world and not be using your marijuana dispensary as a front for selling other drugs and you're not selling to kids; they don't care. Under the Sessions Justice Department, all marijuana use and sale are illegal. Now, that's what the policy says and that's kind of what the official position is. The fact of the matter is, there are a lot of things that will still impede the Sessions Justice Department from proceeding against marijuana businesses.

Can you elaborate on that a little, for those of us that may be thinking that the sky is falling following this latest move from the Justice Department?

The first and foremost thing is, for medical marijuana states, our Congress has passed several consecutive the laws that restrict federal funds from being used to interfere with state-compliant actors. So, if you are acting in a medical marijuana state and you are a user or a producer or seller of marijuana products and you're compliant with your state laws the feds literally cannot interfere. Congress has reigned them in and said you can't use any federal funds to interfere. There are a couple of court cases that bear this out. That will interfere with Jeff Sessions' policy of course, but even in the adult-use recreational space whether the Sessions' Justice Department has official priorities or not the bottom line is, they do have priorities.

They have limited resources and they're going to use those resources where they're most effective. They're going to be most effective, frankly, with the opioid epidemic and dealing with organized crime and dealing with all these other issues that they were dealing with under the “Cole memos” anyway. So, I think that we're unlikely to see a major change. Finally, we have a huge amount of public support for marijuana. We've got real money in the system. We've got overwhelming majorities of people across the country who approve of this. If you start seeing people who are compliant with their state laws and prosecuted by the feds, I think you're going to see a real strong pushback from the public at large. So, that's my sort of lawyer summary on Sessions.

We’ve seen a lot of growth in the cannabis industry over the past five years, both in the explosion of companies and in their valuations. Some insiders and executives have made the point that you can’t stop a moving train, so to speak. Between job growth and tax revenue, there is no way that Jeff Sessions or anyone can shut them down.  I guess from what you said I know the answer to this, but is that the correct assessment or are people being naive?

I don't think anyone is being naive at this stage of the game. I do think that we do have this moving train and it will be almost impossible to stop it at this point. That being said, when you go into this industry versus some other industry that's unquantifiably legal at the federal level you are taking on some risk. So, I think anyone who's investing their resources and time in this industry has to know that they're dealing at the present moment in something that's federally illegal. There is an inherent risk in that, but I don't see any slowdown in the way things are moving. In fact, I just think they're going to continue to speed up and gain more momentum, that's for sure.

A few experts and industry insiders have argued, that Sessions move will spur Congress towards forming legislation to protect states with legalized marijuana permanently -or perhaps even something more, like a full legalization bill. You yourself, in your letter to Senator Tillis, called marijuana reform inevitable. Where do you see Congress on the issue right now and will we ever have full legalization across the country?

With Sessions, I do think it's a bit ironic and funny that him revoking the Cole memo is arguably one of the best things that's happened to the cannabis industry. I mean that in the sense that everyone was sort of acting under this idea that it's sort of pseudo-legal and that we're okay. Congress didn't really feel the need to make any affirmative acts if you kind of lay low for a while. Well, now that the Memos are revoked, Congress is getting a lot of heat and a lot of pressure to do something. In a lot of ways, I think Congress is more likely to act now, but to your question about are we going to see full legalization? I'm not sure that that term, unfortunately, has a good meaning.

What I think we're going to see is one of two or a couple possibilities. One possibility, and these are the bills that are pending right now; Cory Booker's got a very good bill before the Senate right now, that would simply remove marijuana from the controlled substance act altogether and allow it to be a state by state issue. In other words, it's a state by state issue as it is, it will just take the federal government out of the equation for that. So, when you say full legalization well, that in a way is full legalization at the federal level, but it doesn't necessarily mean that every single of the 50 states is going to enact comprehensive reform.

So, that's one way things may go. Another way is that Congress may not de-schedule marijuana entirely, but it may bump it down a few schedules so that it is legal under certain circumstances federally, which would be full legalization in a way. But then we're still back to what the states are going to do with that. I think this will, for the foreseeable future, be a state by state issue regardless of what the feds do.

Does Sessions' move shift the focus of the cannabis industry up north to Canada? In other words, does chaos down here mean an opportunity for businesses over there, or does his announcement end up negatively affecting more than just the domestic cannabis market?

Well, I think if we're looking at sort of a global view and the idea that there is investment money out there in the world and that people in businesses, want to put money into the cannabis industry then yes, in some ways this is obviously a big boon for Canada. This is giving Canada a little bit of a lead time on the United States in gathering investment money, because of course marijuana; cannabis from hemp is an international industry. But, then it's not international in the sense that in the United States it's a state by state issue. It's not even a national issue. Canada's a little bit different on that in that regard. So, I think that if we're talking about marijuana, I don't see this being a huge boon overall to Canada except to the extent that there is global money that's going to go somewhere else.

In other words, yes there's a little bit of a leg up there. But as far as the money that’s in the United States I don't see it moving to Canada. I see it mostly staying in the United States trying to get things going because that is the bigger market of course, ultimately.

Sure. There are so many misconceptions, but I think that if I had to pick one, it would be that we need to study this plant more. I'm not saying that we don't need to study it more-- in fact, the more study, the better we understand the plant. But I think as far as studying whether it is harmful, well, the marijuana plant is arguably the most studied plant in the history of mankind. So, we don't need more studies to show whether or not it's harmful. Maybe that's a better way of putting it. It's clearly not harmful and clearly at a minimum significantly less harmful than any number of other things that are legal.

It's just something politicians say to easily duck the question. "Well, we just need to study it more." We all know now that's total bullshit. We can study it for specific combinations of cannabinoids and how they treat different diseases and different combinations of terpenes and how that makes us feel, so on and so forth, but as far as do we need to study it in order to de-schedule it? No. It's clear that we need to de-schedule it.

Governor Cuomo in New York recently said just that; I believe he’s assembling a panel to study the effects of pot legalization.

Yes. This is kind of what they say, you know? It's just ridiculous and I appreciate you noticing that I think there are a lot of people with a lot of good intentions who are rah-rah cheerleading for marijuana, but who don't take a critical view of it. I really try to focus on, what is fact and what is fiction? Marijuana does seem to have a lot of potential to do a lot of good things, but it's not snake oil. It's not going to cure everything so let's focus on the things that it can and the reason and basis for that. I really do try to-- I think you gain integrity by acknowledging facts from fiction if that makes any sense.

I tend to be one to think it's the greatest thing in the world, but that sort of forces me to say okay, well, we need to acknowledge sure, there's excess teen use might lead to some increased probability for experiencing mental illness later in life. That's something that seems to be a possibility and so we should acknowledge that. But, all in all, the plant has so many unbelievable properties that are great so the fact from fiction thing I think is important.

Okay, so let me ask, recently San Francisco began a move to overturn thousands of marijuana convictions dating back to 1975. Colorado had made similar moves as well. Do you see this as a trend in the country moving forward, or as being more limited to certain areas?

I think it's a trend and I think it's something that will gain momentum in the same way that the marijuana reform at large has. Right now, it's something that you're not seeing a lot of, but I think as more and more states start to enact these types of policies I think it'll be almost impossible for other states not to. As a lawyer, you can look at this issue two ways. One way to look at it is very black and white and say well, someone who was convicted ten years ago was convicted under a law that was lawfully enacted. They broke the law, they knowingly did it and they were convicted, so why would their conviction be turned over? That's one way to look at it. But I think the better way to look at it is, the war on drugs has been-- has carried out a massive amount of injustice to people across the country and particularly people into communities of color.

When you read the statistics you see that African Americans, Hispanics, Caucasians, all use marijuana at roughly the same rates, but African Americans are prosecuted four times as often as Caucasians so it's a massive injustice. So when you step back and look at how marijuana laws have been enforced, not to mention that marijuana should never have been made illegal, to begin with, it’s unjust and that's why the convictions are going to be turned over.

Additionally, we've got a lot of people who are in jail for, you know, using or selling a plant and that's draining our resources. Why are we keeping these people in jail and using our tax dollars to house them in jail and feed them when they used a plant? That's just kind of ridiculous. So, from a natural resource allocation purview, I think it also makes sense that we should go back and undo these convictions.

Finally, if I may, what’s the biggest issue facing the cannabis industry right now that no one is talking about?

This is kind of coming out of left field, but you asked the one that no one was talking about. A lot of my practice involves people in the hemp and CBD industry, so I'm going to focus on that for this question. There are a lot of people that are selling CBD products across the country lawfully that are not paying attention to something as simple as sale and use taxes in the states in which they sell. I think that this is an issue of dealing with the various regulations involving sales and use tax as minor and wonky and boring as that issue is, I think it's going to come to a head at some point.

I mean, if you sell shoes to people all over the country you're going to have to deal with the sales and use tax for the sale of shoes. There's no difference with CBD. If CBD is going to be a nationally respected, legitimate industry, as I think it is and should continue to be, then the industry is going to have to deal with all of these mundane issues like taxes, you know? So, that's what I see. Anyway, these national CBD companies that are going to need to be paying a little bit more attention to local and state-wide taxes and those types of things.

*Check out part one of our interview with Rod, where we discuss the roots of his cannabis advocacy, what it means to practice cannabis law, and the growing legal battle behind CBD.