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Lies, Flip-Flops and Vagueness From the Feds on Medical Marijuana

Last Friday the federal government ruled that marijuana has no
accepted medical use and should remain classified as one of the most
dangerous drugs in existence.

It took the U.S. Drug Enforcement Agency nearly nine years to reach
this conclusion. Medical marijuana advocates had asked that cannabis
be removed from the list of schedule one drugs -- the most
restrictive category -- in light of growing evidence that it helps
treat such ailments as glaucoma, multiple sclerosis and the side
effects of chemotherapy.

The DEA ignored that research, shining on the 16 states (and
counting) that have legalized medical marijuana.

The ruling was brilliant, in a way. It was as if the emperor, who'd
finally been called out for wearing no clothes, thought long and hard
about how to respond and eventually settled on baldfaced denial: "Yes I am."

For more than 40 years the feds have said marijuana is as dangerous
as heroin and worse than cocaine, morphine and PCP. As public
acceptance of medicinal marijuana has grown (it is now overwhelmingly
supported in public polls), this position has looked increasingly
ridiculous. The feds have begrudgingly attempted to accommodate the
shifting tide without actually altering position.

The result has been mass confusion.

In October 2009 David Ogden, then-deputy attorney general, issued a
letter to federal prosecutors. The memo claimed to provide
"clarification and guidance" on federal enforcement priorities, but
in fact the thing was chock full of doublespeak and vague,
conditional language. For example, Ogden told prosecutors that "as a
general matter" they probably shouldn't go after patients with
"serious illnesses" or their caregivers as long as they're in "clear
and unambiguous compliance with existing state laws." Why? Not out of
sound science or compassion, but because arresting them is "unlikely
to be an efficient use of limited federal resources."

Ogden's memo was widely interpreted as evidence that the Obama
administration would look the other way when it came to
state-law-abiding dispensaries. Not coincidentally, the medical
marijuana industry has exploded in the 21 months since, particularly
in Colorado (dispensaries now outnumber Starbucks in Denver) and
California. Medical marijuana, already a $1.7 billion industry, could
reach $8.9 billion in five years, according to See Change Strategy, a
financial research firm. Predictably, as the industry matures,
suppliers are looking to consolidate and streamline production. The
most notable example is in Oakland, where last June the city council
authorized four massive, industrial-style growing facilities.

For the federal government, this was a step too far. Two weeks ago
the Department of Justice took another uneasy stab at articulating
its stance. In another letter to federal prosecutors, Deputy Attorney
General James Cole bemoaned the specter of large-scale cultivation
centers. "Some of these planned facilities have revenue projections
of millions of dollars," he complained, as if the industry isn't
already that large. "The Ogden memorandum was never intended to
shield such activities from federal enforcement action and
prosecution, even where those activities purport to comply with state law."

Again, the bottom line was that anyone caught with marijuana, for
whatever reason, could be subject to federal prosecution. On that
point Cole was as clear as day.

While the Ogden memo was seen as a green light for dispensaries
(when, in fact, federal policy changed not at all), both the Cole
memo and last week's DEA ruling have been interpreted by medical
marijuana advocates as a betrayal from the Obama administration. "The
president is using intimidation tactics to stop elected officials
from serving their constituents, thereby pushing patients into the
illicit market," Steph Sherer, executive director of Americans for
Safe Access, said in a statement. Tom Angell, a spokesman for Law
Enforcement Against Prohibition, agreed, saying "the only entity
benefiting from President Obama's stance on this is organized crime."
Even Jan Brewer, the anti-gay marriage, anti-immigration governor of
Arizona, was annoyed, saying in a statement, "If this memo was an
attempt to clarify, it failed."

Local cultivators don't seem too worried.

In an email, Humboldt Growers Association President Joey Burger said
he's not bothered by the lack of clarity. "There are many large
dispensing collectives that have been in operation for over a decade
in California without any federal intervention because they are
following local ordinances and regulated by their city or county," he
said. Like the feds, Burger objects to large-scale cultivation
indoors, saying it'sa fire and theft risk and not energy efficient.

He said the federal government's saber rattling highlights the need
for a medical marijuana ordinance in Humboldt County.

On Tuesday the county Board of Supervisors voted unanimously to move
forward on a draft medical marijuana ordinance by focusing on two
main issues -- indoor cultivation and dispensary regulation -- before
tackling the complex challenges of regulating outdoor grows.

To date there have been no local proposals for indoor grow operations
anywhere near the scale of Oakland's plans (even considering the
downsized revisions). Meanwhile, the threshold for federal scrutiny
remains mysterious. The federal government has signaled that regional
ordinances and state laws will be respected only until they're not.

Supervisor Mark Lovelace said that the federal government is merely
trying to prevent a free-for-all. "Clearly, the larger the scale of
cultivation and the more a local government benefits from that
cultivation (as through taxation), the more likely it is to come in
for federal scrutiny," he wrote in an email last week.

Where exactly does the federal government draw the line? The Journal
contacted the Department of Justice requesting specifics: How does it
define "large-scale" cultivation? Is there a size limit for
production facilities, even those in compliance with state law? If
so, what is it? What besides cancer is considered a "serious illness"?

An email response from the agency's public affairs office left those
questions unanswered. "While we wouldn't speculate on what action we
might or might not take with respect to any particular matter, the
Ogden memo was never meant to shield from federal enforcement
large-scale industrial marijuana cultivation centers," spokesperson
Jessica Smith wrote, regurgitating her agency's undefined terms.

She reiterated that enforcement would not focus on individuals with
serious illnesses or their caregivers.

The implication is clear: The federal government's tacit acceptance
of patients and caregivers will be extended to cultivators only if
they continue to operate in the shadows, like drug dealers.