The top federal prosecutor in Massachusetts offered no guarantees on Monday that he would take a hands-off approach to legalized pot, injecting a new layer of uncertainty and confusion into the commercial marijuana industry as it looked to gain a foothold in the state.
U.S. Attorney Andrew Lelling said in a statement that while he understood the desire for guidance on the federal approach to the state's voter-approved recreational marijuana law, he "cannot provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution."
Such determinations would be made on a "case-by-case basis," he added.
"I'm not sure what type of message that sends or what type of security that gives you," said Speaker of the House Robert DeLeo. "Or lack of security, I should say."
"They could go after anyone because it's all against federal law," said Jonathan Napoli, a cannabis consultant who also owns The Boston Gardener, which supplies individual growers and dispensaries with soil, lamps and other paraphernalia.
The Yes on 4 Coalition, which spearheaded the 2016 ballot campaign, had publicly called for Lelling to provide "clear, unambiguous answers" to several questions, including whether his office would prosecute businesses that are granted licenses by state cannabis regulators to grow, produce, test or sell marijuana legally in Massachusetts.
U.S. Attorney General Jeff Sessions moved last week to rescind the so-called Cole Memorandum, an Obama-era Justice Department policy that, in general, called for non-interference with legal marijuana operations in states. Eight states, including Massachusetts, have legalized adult use of recreational pot.
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Lelling took office in December after being nominated by President Donald Trump and confirmed by the U.S. Senate. His comments on Monday expanded on an earlier statement last week that promised enforcement of serious federal crimes but did not directly address the recreational marijuana issue.
"This is a straightforward rule of law issue," said Lelling. "Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana."
"A compliant dispensary, I'd be shocked if he went after that," said Napoli. "But there's no guarantees."
Jim Borghesani, a Massachusetts spokesman for the Marijuana Policy Project, called the prosecutor's comments "ominous." Pro-marijuana groups fear the change in tone from the Justice Department and federal prosecutors will send a chill through the nascent cannabis industry, discouraging those looking to start or invest in those businesses.
"I don't think any business would ever want to open its door and have fears on the first day that the FBI is going to be standing on their doorsteps," said Borghesani.
Democratic legislative leaders echoed those concerns Monday, with acting Senate President Harriette Chandler saying that would-be marijuana entrepreneurs now faced "a great deal of uncertainty."
The Cannabis Control Commission, a five-member panel created to regulate marijuana in Massachusetts, has pledged to move forward with a process that foresees the first commercial pot shops opening in July.
Republican Gov. Charlie Baker, who said last week that rescinding the Cole Memorandum was the "wrong decision," continued to support the commission's work and would provide adequate funding for it, a spokeswoman said Monday.
