Cole Memo Rescission (2018)

What the Cole Memo Actually Did

The original Cole Memorandum was issued August 29, 2013 by Deputy Attorney General James M. Cole to all U.S. Attorneys ^[1]. Cannabis remained a Schedule I controlled substance under federal law—the memo did not legalize anything. Instead, it listed eight federal enforcement priorities: preventing distribution to minors, preventing revenue from going to criminal organizations, preventing diversion to non-legal states, and others. Prosecutors were instructed to focus on conduct that implicated those priorities rather than on state-licensed cannabis activity that did not ^[1].

This internal guidance gave state-legal cannabis businesses in Colorado, Washington, and later other states enough legal cover to operate, attract investment, and build supply chains, even though technically every transaction was a federal felony. Banks remained mostly cautious, partly because the Cole Memo was guidance, not law, and could be withdrawn at any time ^[2].

Sessions Rescinds the Guidance: January 4, 2018

Attorney General Jeff Sessions issued a one-page memorandum titled "Marijuana Enforcement" on January 4, 2018 ^[3]. The memo rescinded the 2013 Cole Memo, the 2014 Cole Memo on tribal lands, the 2009 Ogden Memo, and related guidance. In their place, Sessions reaffirmed "previously established prosecutorial principles"—meaning U.S. Attorneys should weigh federal law enforcement priorities, crime seriousness, deterrent effect, and resources, with no special carve-out for state-legal cannabis ^[3].

The timing coincided with California's adult-use market opening on January 1, 2018, just three days prior. Cannabis stocks dropped sharply on the day of the rescission announcement, and industry groups warned of an imminent federal crackdown ^[4].

What Actually Happened Operationally

Despite industry alarm, federal enforcement against state-licensed cannabis operations remained minimal.

Most U.S. Attorneys in legal states publicly signaled they would not change prosecutorial priorities. Bob Troyer in Colorado announced his office would continue focusing on the same conduct as before ^[4]. Andrew Lelling in Massachusetts and Annette Hayes in Washington issued similar statements. No wave of federal raids on state-licensed dispensaries followed the rescission.

Two structural factors explain why the rescission had limited operational bite. First, the Rohrabacher–Farr amendment (later Rohrabacher–Blumenauer, now Joyce amendment)—a rider attached annually to federal appropriations bills since 2014—prohibits the DOJ from spending funds to interfere with state medical cannabis programs ^[5]. The Ninth Circuit confirmed in United States v. McIntosh (2016) that this bars prosecution of individuals complying with state medical cannabis law ^[6]. Sessions could not undo a statute with a memo. Second, federal cannabis prosecutions had already shifted overwhelmingly toward interstate trafficking and illicit cultivation, not state-licensed operators; the Cole Memo had largely codified existing prosecutorial practice rather than creating a novel carve-out ^[2].

Senator Cory Gardner (R-CO) publicly opposed the rescission and reportedly secured a commitment from President Trump in April 2018 that Colorado's industry would not be targeted, in exchange for Gardner releasing his holds on DOJ nominees ^[7].

Long-Term Consequences: Finance, Not Enforcement

The rescission's real effects were financial and political, not prosecutorial.

Banking uncertainty: The 2014 FinCEN guidance on serving cannabis businesses technically referenced Cole Memo priorities. FinCEN clarified the guidance remained in effect after the rescission, but many banks became more cautious anyway, and the SAFE Banking Act remained stuck in Congress ^[2].

Market listings: Major U.S. stock exchanges continued refusing to list plant-touching cannabis companies, pushing them to Canadian exchanges. The rescission was cited as a reason for this conservatism.

No formal successor policy: Neither Attorney General William Barr, Merrick Garland, nor anyone since has issued a formal written replacement. Garland told the Senate Judiciary Committee in 2021 that prosecuting state-legal cannabis was "not a useful use" of DOJ resources, but did not reinstate written guidance. As of October 2026, the Cole Memo's status remains: rescinded, not formally replaced, with de facto non-enforcement against state-legal operators.

Common Myths About the Rescission

Several stories about the rescission have hardened into industry folklore.

'Sessions launched a federal crackdown on legal cannabis.' Strong evidence He did not. No state-licensed dispensary was raided by federal authorities specifically because of the rescission. The threat was real enough to motivate political action, but the predicted enforcement wave did not materialize.

'The Cole Memo made state cannabis legal under federal law.' Strong evidence It never did. The memo was non-binding internal guidance. State cannabis activity was a federal crime in 2013, remained one in 2017, and remains one today. The Cole Memo only directed prosecutors where not to prioritize enforcement; it did not change the underlying law.

'Rohrabacher–Blumenauer protects the whole cannabis industry.' Strong evidence It only protects medical cannabis programs, and only as long as Congress renews the appropriations rider each year. Adult-use operators rely on prosecutorial discretion and political will, not statutory protection.

'Garland reinstated the Cole Memo.' Strong evidence He did not. No written formal replacement exists as of this writing. De facto enforcement priorities continue under executive discretion, but lack the written memo guidance that existed from 2013 to 2018.

Sources

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Related

• The Ogden Memo (2009) — The 2009 DOJ memo that became a myth, and why discretion is not amnesty.
• Wilkinson Memo and Tribal Cannabis Sovereignty — Federal guidance on Native American tribal authority over cannabis cultivation, sales, and...