AG Sessions’ letter to Inslee, Ferguson heats up federal-state marijuana battle

In response to a letter from U.S. Attorney General Jeff Sessions regarding Washington’s marijuana regulations, state Attorney General Bob Ferguson released on Friday the following statement:

“I was disappointed by Attorney General Sessions’ letter, which relies on incomplete, inaccurate and out-of-date information on the status of Washington’s marijuana regulations,” Ferguson said in a media release. “I’m also disappointed that he has yet to accept my repeated invitations to meet in person to discuss this critical issue face to face. If he does accept, I look forward to providing him with a more complete picture of the robust regulatory program that exists in our state.

“Any action from the Department of Justice short of allowing our well-regulated, voter-approved system to continue is unacceptable. I will continue to defend the will of Washington voters.”

State voters approved the sale, processing and production of recreational marijuana in 2012. The city of Kent bans the sale, processing and production of marijuana.

Inslee also issued a statement on Sessions’ letter:

“Washington state has been a ground-breaking leader when it comes to implementing a whole new marketplace for recreational marijuana,” Inslee said. “I am incredibly proud of the work we’ve done to implement legalization in a way that keeps youth safe, minimizes diversion into the black market, and minimizes diversion of product out of state.

“We are learning important lessons as we go and continually looking for ways to improve our work on all fronts. It is important for our state to know the Trump Administration is willing to work with us to ensure our success on these efforts, rather than undermining our efforts and diminishing our ability to work constructively with growers and distributors.

“While Washington has been successful in creating a tightly regulated market place and generating needed revenue for the state, challenges do remain. Most importantly marijuana remains a Schedule 1 controlled substance by the federal government. This determination affects all aspects of our state systems, from banking to research to consumer safety.

“It is clear that our goals regarding health and safety are in step with the goals AG Sessions has articulated. Unfortunately he is referring to incomplete and unreliable data that does not provide the most accurate snapshot of our efforts since the marketplace opened in 2014. Our team is currently reviewing his letter, and we will have a more detailed response in the coming days. I look forward to speaking with AG Sessions to make sure he fully understands everything our state is doing to accomplish our shared goals.”

The letter, obtained and first reported by the Huffington Post, was sent by Sessions this week to Gov. Jay Inslee and Ferguson:

Dear Governor Inslee and Attorney General Ferguson:

Thank you for your letters of February 15, 2017, April 3, 2017, and May 8, 2017. I was pleased to read that you share my concern for public health and safety and my belief that the federal and state governments should work together to address our country’s concerns with marijuana. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a crime. The Department remains committed to enforcing the Controlled Substances Act in a manner that efficiently applies our resources to address the most significant threats to public health and safety. I look forward to working with you on these issues.

I also read with interest the statement in your letter that you “have worked … to establish robust regulatory structures that prioritize public health and public safety,” and 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, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.” Thus, the memorandum “does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.”

I also recently read the 2016 report by the Northwest High Intensity Drug Trafficking Area (HIDTA), entitled “Washington State Marijuana Impact Report.” This report raises serious questions about the efficacy of marijuana “regulatory structures” in your state, including findings that:

• “[T]he medical market [for marijuana] is considered `grey’ due to the lack of regulation and oversight” and, furthermore, aspects of Washington’s regulatory structure for the “medical market” have “unintentionally led to the growth of black market enterprises”; • The “recreationally licensed” marijuana market also is incompletely regulated: the leading regulatory violation in that market has been the “failure to utilize and/or maintain

traceability” of marijuana products;

• “Since legalization in 2012, Washington State marijuana has been found to have been destined for 43 different states”;

• 90% of public safety violations of the state’s marijuana “regulatory structures” for “recreational licensees” involved minors, according to data from the first year of Washington’s “recreational marijuana” laws. Violations include, for example, sales to minors and employment of minors;

• “One in five l O’hgrade students reported riding with a driver who had used marijuana — 9% reported driving within three hours of consumption,” according to the most recent data in the report;

• “49% of young adult drivers who used marijuana in the past month had driven a car

within three hours after using marijuana” and 64% of marijuana DUIs in Spokane Valley

involved youth, according to data from the first year of Washington’s “recreational

marijuana” laws;

• “61.9% of drivers do not believe marijuana makes a difference in their driving ability” and “[d]rivers with active THC in their blood involved in a fatal driving accident have increased 133.2% from 2010 (16) to 2014 (23)”;

• In 2014 alone, 17 THC extraction labs exploded; and

• There was a 54% increase in the number of marijuana calls to the State Poison Center from 2012-2014.

These findings are relevant to the policy debate concerning marijuana legalization. I appreciate your offer to engage in a continuing dialogue on this important issue. To that end, please advise as to how Washington plans to address the findings in the Northwest HIDTA report, including efforts to ensure that all marijuana activity is compliant with state marijuana laws, to combat diversion of marijuana, to protect public health and safety, and to prevent

marijuana use by minors. I also am open to suggestions on marijuana policy and related matters as we work to carry out our duties to effectively and faithfully execute the laws of the United States. You may direct your response and suggestions to the Intergovernmental Affairs and Public Liaison within the Office of Legislative Affairs, which can help coordinate any communications logistics. I look forward to your response.