Colorado medical-marijuana bill draws U.S. attorney's warning

The U.S. attorney for Colorado warned state lawmakers Tuesday that pending legislation adjusting rules for medical marijuana would conflict with federal law and could lead to federal prosecutions.
U.S. Attorney John Walsh's letter was sent to Colorado Attorney General John Suthers in response to his request for clarification on how federal treatment of medical marijuana use may conflict with pending legislation now under consideration in House Bill 1043.
"The Department of Justice remains firmly committed to enforcing the federal law and the Controlled Substances Act in all states," Walsh wrote. "Thus, if the provisions of H.B. 1043 are enacted and become law, the Department will continue to carefully consider all appropriate civil and criminal legal remedies to prevent manufacture and distribution of marijuana and other associated violations."
Sen. Pat Steadman, D-Denver, a sponsor of the bill, said that in his mind the letter only further muddies the federal Department of Justice's stance on medical marijuana rather than providing clarification.
"We have had mixed messages from the federal government on this," Steadman said. "I think this casts a big shadow upon this industry in Colorado. It does cause some uncertainty and trepidation."
Possession and sale of marijuana are illegal under federal law. But several states, including Colorado, allow the use of small amounts of marijuana for medical purposes.
Feds' two key concerns
Colorado's medical-marijuana industry has exploded in the past two years, partly because of the state constitutional amendment allowing marijuana for medical use, partly because of prior state court decisions allowing expanded use based on that amendment, and partly because of the Justice Department's previous declaration that targeting medical marijuana usage in states where it was legal would be a low priority for federal agents.
As the number of marijuana dispensaries, and users, has surged across the state, the legislature has tried to provide some rules for the burgeoning industry.
The intent of the current bill, by Steadman and Rep. Tom Massey, R-Poncha Springs, was to close loopholes and fix portions of the state's medical-marijuana laws.
But as it has moved through the committee process, it has drawn the concern of Suthers and others in law enforcement.
Suthers sent his own letter to members of the Colorado General Assembly on Tuesday, including Walsh's guidance and similar letters sent by U.S. attorneys to stakeholders in other states.
The Walsh letter restates the federal position that the "Department of Justice will not focus its resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen."
But Walsh targets two portions of the proposed law — one that has been removed for now, and another that remains in the bill.
The first is an amendment to the bill that would have allowed the state to license a marijuana investment fund to help fund commercial marijuana operations, which struggle to get loans because of the nature of their business. It did not pass the House.
Walsh wrote that the Department of Justice would consider civil and criminal action for those who invest in or facilitate marijuana production.
But Steadman said he does not plan to reintroduce the notion of a state-authorized investment fund in the Senate.
Second, the bill as currently drafted would authorize state licensing of "medical-marijuana infused product" facilities with up to 500 marijuana plants, along with the possibility of granting waivers to license even larger facilities.
"The Department would consider civil actions and criminal prosecution regarding those who set up marijuana growing facilities and dispensaries, as well as property owners, as they will be acting in violation of federal law," Walsh wrote.
"Know our limitations"
"I don't know that this letter forces us to change the language in the bill," Steadman said. "It may make it advisable for product manufacturers to never apply for such waivers."
But Massey said it may be wise to simply restrict the number of plants a growing facility can have, without providing a waiver procedure that would allow such a facility to get bigger.
"I think by limiting the size to a degree, it is not a bill-killer," Massey said.
"Prior to this, the federal government had been silent, which was even more confusing because we are trying to craft legislation on how the federal government would react," he said. "The fact that we are getting feedback probably lets us know our limitations and boundaries, and that is a good thing."