The Ogden Memo (2009)

Background: federal-state conflict before 2009

By 2009, thirteen U.S. states had medical cannabis laws on the books, beginning with California's Proposition 215 in 1996 ^[1]. Cannabis remained — and remains — a Schedule I controlled substance under federal law ^[2], and the Supreme Court had affirmed in Gonzales v. Raich (2005) that federal authorities retained power to prosecute even purely intrastate medical use ^[3].

During the Bush administration, the DEA conducted high-profile raids on California dispensaries and growers, including the prosecutions of Ed Rosenthal and Charles Lynch ^[4]. On the 2008 campaign trail, candidate Barack Obama said he was not interested in using Justice Department resources to circumvent state medical marijuana laws ^[5]. The Ogden Memo was the first formal attempt to translate that political signal into prosecutorial guidance.

What the memo actually said

On October 19, 2009, Deputy Attorney General David W. Ogden issued a three-page memorandum to selected U.S. Attorneys titled Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana ^[6].

Key points from the primary document:

• Federal prosecution of marijuana offenses remained 'a core priority' of the Department.
• However, 'as a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.'
• The memo listed factors that would still warrant federal attention: sales to minors, firearms, violence, ties to other criminal enterprises, money laundering, amounts inconsistent with personal medical use, and use of state medical laws as a cover for non-medical trafficking.
• It explicitly stated it did 'not legalize marijuana' and conferred no legal defense to any defendant ^[6].

In other words: discretion, not amnesty.

How the myth grew

Cannabis trade press and many state-level operators read the memo as a federal stand-down order. Dispensary counts in California, Colorado, and Montana climbed sharply through 2010 and into 2011, and openly commercial cultivation operations expanded ^[7][8]. The phrase 'Ogden Memo protections' began appearing in marketing materials and investor pitches.

This reading went beyond what the document said. The memo addressed patients and caregivers in 'clear and unambiguous' compliance with state law — not large commercial cultivators or multi-storefront chains, especially in states whose statutes did not actually authorize commercial sale.

The folklore that Ogden 'legalized medical marijuana federally' or 'protected dispensaries' is wrong Strong evidence. The text does neither.

The 2011 Cole clarification and what followed

By 2011, federal prosecutors in California, Washington, Montana, and elsewhere were sending threat letters to landlords of dispensaries and conducting raids. On June 29, 2011, Deputy Attorney General James M. Cole issued a follow-up memo clarifying that Ogden had been 'never intended to shield' commercial cultivation, distribution, and dispensary operations from federal enforcement ^[9]. Industry observers called it the moment the 'Ogden era' ended ^[8].

A second Cole Memo in August 2013 — issued after Colorado and Washington legalized adult-use cannabis — set out the eight enforcement priorities that would govern federal policy for the next several years ^[10]. Attorney General Jeff Sessions rescinded both Cole memos in January 2018 ^[11], though by then statutory protections for state medical programs existed through the Rohrabacher–Farr (later Rohrabacher–Blumenauer) appropriations rider, first enacted in 2014 ^[12].

So the Ogden Memo's practical life as guidance was roughly twenty months. Its life as industry mythology has been much longer.

Historical significance

Stripped of the mythology, the Ogden Memo matters for three reasons:

1. First formal federal forbearance. It was the first written DOJ acknowledgment that state medical cannabis programs existed and that patients in compliance with them were a low enforcement priority.
2. Template for later guidance. The structure — list of priorities, discretion language, explicit non-legalization disclaimer — became the model for the Cole memos and for FinCEN's 2014 banking guidance ^[13].
3. Cautionary tale about prosecutorial guidance. Because such memos are internal policy, not law, they can be rescinded by the next administration. The Ogden-to-Sessions arc is the standard example cited by reform advocates arguing that statutory change — not guidance — is the only durable fix ^[11][12].

Sources

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