On November 7, the very morning that former Attorney General Jeff Sessions’ resignation letter was submitted, the Department of Justice made a significant, albeit little noticed announcement: Billy Williams, the Oregon US Attorney, was appointed to chair to the Department of Justice’s Marijuana Working Group, which is studying the outcomes of legal cannabis across the country.
This group, formed in 2012 and comprised of US attorneys from across the country in areas with adult or medical-use cannabis laws, has largely conducted its work out of the public’s view.
But last week Alyson Martin, Cannabis Wire co-founder and editor, had an exclusive interview with Williams—on topics ranging from the prospect of cannabis banking access to the challenge created by the legalization of hemp for law enforcement’, to, of course, Oregon’s overproduction problem and newfound status as the poster child for loose cannabis regs.
Asked about the Congressional hearing today on access to banking for cannabis businesses, perhaps the biggest industry headache, Williams told Cannabis Wire: “If people are engaged in state legalized marijuana production and distribution capacities, it’s not safe for them if they can’t use a bank. I understand that. Again we don’t we don’t make the law. We enforce the law.”
Williams’ advice to lawmakers and regulators considering legalization? “Slow down, wake up, and get serious about what you’re doing.”
This interview has been edited for space and clarity.
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Alyson Martin, Cannabis Wire: Can you tell me about the composition of the marijuana Working Group and its objectives?
US Attorney Billy Williams: This working group was formed so that US Attorneys could hear from each other about issues that they were were facing when certain states voted to legalize marijuana in one form or another.
Martin: In the absence of a guidance memo like the Cole Memo, rescinded by Jeff Sessions in January 2018, what are the Marijuana Working Group’s priorities on cannabis?
Williams: Well, when the Cole Memo was replaced by the Sessions Memo, the discretion was left to individual US Attorneys to address the issues in their respective districts, based upon the law enforcement issues that come up. What are the issues that have been identified? In terms of regulation: the efficiency of the state regulatory schemes; black market out-of-state diversion; the effects [of legalization] upon minors’ consumption; public health-related issues; and in many states, certainly in Oregon, keeping track of what the environmental issues are that have resulted. And then the livability questions. Those are all common themes that fit into the priorities of this working group. The issues have only been exacerbated, quite frankly. And whether or not a state, how a state is addressing them—that varies from state to state.
Martin: Can you be specific about what’s been “exacerbated?”
Williams: I think this was noted in the article that I started reading but I haven’t finished, entitled When Oregon Blew It. [The article appeared in Cannabis Wire.] I can certainly speak to Oregon’s issues. And overproduction—and diversion out of state—is a huge issue. Oregon is overproducing more marijuana than can possibly be consumed by people in Oregon. That’s been pretty well documented.
There’s a bill that’s been submitted to the Oregon Legislature this year called Senate Bill 582, which would essentially allow Oregon to transport marijuana out of state, I believe to other states where marijuana has been legalized. And that completely ignores what is already a well-documented problem of diverting out of state. One of the questions I had on this proposal is: How does that address the issue that nearly, as far as I know, every state who under state law is allowing the production of marijuana is producing too much? How does that address any problem other than to make it worse? You want to authorize the shipment of marijuana that’s being overproduced to another state that’s over-producing it? No. Just because you want job creation and tax revenue, that is so completely irresponsible in my view.
From the Oregon Idaho High Intensity Drug Trafficking Area report that came out last summer, we know that Oregon marijuana has shown up in thirty-seven other states in criminal investigations, and probably more states.
How does allowing out-of-state shipments address the overproduction issue other than finding a way to get rid of your product and stay in business? I can guarantee you it wouldn’t just be going to other states who’ve legalized it. It just makes the problem of diversion into the black market more of a problem. Especially for law enforcement.
Martin: As you know, a number of states are considering legalization now. Some states are setting up their regulatory regimes right now. So what is Oregon’s path out of this situation of sizable overproduction? Oregon growers would have enough cannabis to supply Oregon’s legal market for the next six and a half years, or something like that, in one year of harvest. So what’s Oregon’s path out of this situation? And what’s the number one takeaway from Oregon’s experience that other states might be able to learn from?
Williams: Well that’s a good question. I don’t know what their path is. I guess one further question to add onto that one is: Let’s say Congress amends the Controlled Substances Act and reschedules [cannabis] and it becomes legal under federal law, and then states are trying to figure out still how to regulate it. What are the collateral consequences of that? And so I don’t know what the answer to that question is.
Martin: Is there a lesson in some of Oregon’s regulatory hiccups that other state regulators could learn from, in your opinion?
Williams: Well, first off, they’re playing catch-up, obviously, in terms of effectively regulating it. I don’t know if you’re aware of the Oregon Secretary of State’s audit, but, in terms of enforcement, it’s woefully underfunded. They don’t have enough inspectors. They don’t have enough regulators. They don’t have enough state law enforcement officers to effectuate strong criminal enforcement, let alone civil regulatory enforcement. So this has been a battle since day one for them. They don’t fund it appropriately. And when you don’t, people exploit it.
A year ago this week we had a summit.
We had about 130 people in the room who are all stakeholders, from people in the industry to state, local, federal law enforcement to tribal interests, state legislators, people in the public health sector. And it was a summit that people told me I was making a mistake for holding. I said in the beginning, after the Sessions Memo, that we were going to take our time and be methodical and thoughtful about what our priorities were going to be here on the federal side in Oregon.
It was a rather unique experience. People in the industry were thanking me afterwards for bringing people together to hear each other’s perspectives, whether or not there was any agreement or disagreement. And of course there was both.
That led to us putting out our five federal enforcement priorities in early May. And at the same time, with each passing month more information has come out about the failures of the regulatory scheme. I mean, that’s got to be a lesson for other states: Slow down, wake up, and get serious about what you’re doing.
This ties in to, just since the first of the year, media coverage of people talking about the need to ask questions about, you know, Is marijuana as safe as we think? Malcolm Gladwell did his piece that spoke to the book written by Alex Berenson. I haven’t yet read Mr. Berenson’s book, but it’s in the mail.
I remember as a kid watching commercials on TV of an actor dressed as a doctor smoking a Chesterfield or a Pall Mall or a Camel and talking about, you know, that it wasn’t addictive and the health benefits of it. Well that was a lie, wasn’t it? And what the author of Dreamland: The True Tale of America’s Opiate Epidemic has pointed out in his terrific book—which includes histories related to heroin use, alcohol, and tobacco—is claims that were made by the industry behind the opioids and the mass marketing effort that went on and physicians buying in. And guess what? That was a lie too. And people made millions and billions of dollars off of lies. And so here we are. And all these claims are being made and educated people are just buying into it for their own either economic or personal or political reasons. And they’re not asking these questions.
And at a conference last summer, Sam Quinones, the author of Dreamland was on a panel, and he was asked a question by a member of the audience of what he thought about marijuana. I thought Sam’s response was terrific. He said, Look I’m not opposed to decriminalization, but he said his fear was we’re just going down the same track with marijuana that we did with opioids where people aren’t—people are in a rush to accept what’s being said without the science and the challenge of it. And I thought that was a really honest, candid answer. And so this is a long-winded answer to your original question and maybe I’ve gone astray.
But I really appreciated that, I think it was earlier this week or late last week, Senator Durbin from Illinois cautioned on Illinois adopting recreational marijuana. And I appreciate that pause, if you will, because I think other states need to pay attention to those that have been in this experiment now for a few years and haven’t done a good job of regulating it. It’s a battle cry, as it’s been here in Oregon, of tax revenue and job creation. And my challenge to that continues to be: At what cost? What are all these collateral damage issues that are real to this state?
You know, for instance, the livability. I met with landowners in Central Oregon, it’s a very popular part of the state. A lot of outdoor recreation, farming, etc. But in the Bend area, they’re having people out there who live next to these humongous marijuana production facilities and their wells have been going dry for the last couple of years. And they’re spending thousands of dollars to dig deeper wells. And it’s complicated by the fact that there are seven irrigation districts out there and three of those actually, as I understand it, fall under federal purview and it’s unlawful to use federal water for the production of marijuana. But that’s another story. And these people have felt like their concerns have fallen on deaf ears.
I know that Steve Marks, who’s been working on this with the Oregon Liquor Control Commission, and the governor’s spokesperson about a year and a half ago told me their original thought was, ‘Well, all the people who were manufacturing and distributing marijuana illegally would come into the fold of being a licensed producer once the state legalized it under state law. And, that way, the black market would go away.’ Well, I’m sorry, it didn’t work out that way. Not at all. There will always be people who are willing to engage in criminal enterprises for their own benefit and they don’t want to have to pay state taxes on it and state licensing fees.
So these are all just a cadre of concerns that those states thinking about it better be paying attention to and waking up.
And for that matter, it’s totally up to Congress whether or not they change the law. If they do, I hope some thought and awareness is given to what the issues are in those states that are engaged in this grand experiment.
Martin: Is the Marijuana Working Group actively discussing what would happen next if the STATES Act passed? Or another national legalization bill?
Williams: I know that there’s lots of work going on in that endeavor and I don’t walk in that lane. Look, again, it’s up to Congress if they choose to change the laws. And if they do, we will go forward. What I’m saying is one of the things we discuss amongst our members is, [legalization] doesn’t mean there won’t be negative impacts that are criminal and civil in nature regarding marijuana and its production and use, and it doesn’t change the questions on the public health side. In some ways, quite frankly, it exacerbates those public health issues if—and when—it is legalized. So it’s a precautionary message that I think we all need to be thinking about.
Martin: The consumer protection and financial institutions subcommittee is having a hearing this week on cannabis banking. Is cannabis banking an area of focus for the Marijuana Working Group?
Williams: I don’t recall having specific conversations about that… If people are engaged in state legalized marijuana production and distribution capacities, it’s not safe for them if they can’t use a bank. I understand that. Again we don’t make the law. We enforce the law. So it’s not as if the Marijuana Working Group isn’t interested or paying attention to that aspect of it, because we are. We have had cases and investigations that are ongoing right now.
Martin: Do you foresee any kind of crackdown—and I know that that’s a loaded word—either on legal businesses, which obviously the industry was super concerned about under Jeff Sessions, or on illegal businesses, which is sort of what we’re seeing in places like L.A., a kind of post-legalization compliance crackdown?
Williams: Well that’s sort of a charged term that you use, “to crack down.” I think the way to answer that, at least to date, is, and I’ll just answer for us: We have ongoing investigations of individuals from the illegal side under state law, the black market folks, if you will. And also people from the licensed side under state law who have shown up in investigations. We’re awaiting confirmation of the nominee Mr. Barr for Attorney General, and I’m mindful of the questions that were posed to him on this during the confirmation process. When the new Attorney General is confirmed, then I presume we’ll be having conversations within the department about this topic, and many others.
But to answer your question about, you know, do I foresee a crackdown. First off, I don’t know what to make of that word. I would say current investigations are ongoing. We’ll see where they go. I presume that’s happening in other districts. There are other issues related to this industry in different districts. So I don’t have a prediction on the future at this point.
Martin: Have the changes over at the DOJ affected the Marijuana Working Group’s work at all? Has anything been interrupted or can you at all characterize any cannabis-related conversations that you’ve had with Bill Barr or previously Jeff Sessions?
Williams: Under former Attorney General Sessions’ memo, we were encouraged to develop our own priorities following the general priorities of federal prosecution. We’ve done that. I’ve never felt anything other than being supported by Main Justice in our endeavors to carry out our responsibilities under the Sessions Memo. I am awaiting the confirmation of Mr. Barr, and we’ll see if there’s any further direction through the attorney general and deputy attorney general. But I think the best answer to your question, the most accurate one, is I’ve been nothing but supported in this endeavor.
We generally meet by phone or video conference monthly, sometimes it’s bi-monthly, it depends. And we’ll go forward with what we’ve been doing. Our next conference call is in a couple of weeks. And now our new members who’ve joined us in the last couple months will be participating, and so that’s an opportunity to hear from them as well as the existing members on how things are going, what are the issues you’re seeing, how can we help?
Martin: Did you have any thoughts on Bill Barr’s comment to Sen. Cory Booker during his confirmation hearing, the part about not going after cannabis companies? (Background: Sen. Cory Booker asked Barr whether it was “appropriate” to put federal funds toward targeting cannabis businesses that are operating “in compliance with state law.”
“I’m not going to go after companies that have relied on Cole memorandum,” Barr said to Booker. “However, we either should have a federal law that prohibits marijuana everywhere, which I would support myself because I think it’s a mistake to back off marijuana. However, if we want a federal approach—if we want states to have their own laws—then let’s get there and get there in the right way.”)
Williams: No, I don’t.
Martin: I’ve read about these instances where people are hauling hundreds or thousands of pounds of what people claim is hemp, but law enforcement says is “marijuana.” How are cops going to address this sort of lookalike issue between hemp and marijuana?
Williams: I think the short answer is: It’s challenging. It’s something new. It’s the law. We’re going to be in compliance with the law. It is challenging. I’m thinking of the case from a week or so ago where the truckload was stopped over in Idaho. The driver had come from Oregon, I believe. And then there’s been some media stories about the owner of the company, whoever is behind it, saying that it’s hemp, they’re going to sue. So I think that represents one of the new challenges that law enforcement will have to work on. And I’m sure in terms of being in compliance with the law on hemp that the industry would weigh in on ideas of how to make this less complex. But it’s in the beginning of the process.
Martin: I’m curious if the Marijuana Working Group is talking at all about CBD showing up basically everywhere these days. And if there have been any conversations with anyone from the FDA.
Williams: We do have conversations about CBD and the various products it’s showing up in. There’s a lot of alarm being raised by people not just in law enforcement but in communities asking is this good for you, let alone is it legal? There needs to be more attention focused on asking those questions because the public health is at risk if you’re putting it in food and drinks and all kinds of products, from oils to lotions. Where is the scientifically accepted evidence and research to back up the claims that, one, there is a health benefit to it, and two, it doesn’t have a negative consequence to using it? What are the health risks? And I think the answer is: so little is known. People are making a lot of money off of these products and the science doesn’t bear out what the claims are that are professing all these health benefits.
Martin: Do you expect any kind of declarative regs around CBD to come out of the FDA anytime soon? Do you have any insight into how the conversations are being characterized?
Williams: I don’t have any. I haven’t had contact with anybody from the FDA.
Martin: What’s in the Marijuana Working Group’s immediate future?
Williams: Well, again, we have our first phone conference coming up in a couple weeks that includes new members perhaps facing issues that some of us have been dealing with for a few years now. We’ll find out if there are specific concerns being addressed. But I think there’s some consistency in what we’ve seen. Here in Oregon and Washington State and Colorado, for instance, the themes are common in terms of a lack of enforcement on the regulatory side of the house by the state, and an incredible black market that varies from state-to-state in terms of the sources of it. They have some different dynamics going on in Colorado than we do here. My hope is that this group continues to be well-informed on what the issues are, the common themes. How do we help our law enforcement partners who are encountering and countering the issues at every level. By that I mean federal, state, local, and tribal law enforcement.
Martin: Would it be better, in your opinion, for there to be total cannabis prohibition, quote unquote, for cannabis to be illegal federally and on a state level? Or is there a state model that has emerged that is one of the better ones in your opinion, the regulations are tighter and more effective?
Williams: I don’t have a comment on what state has the best regulatory scheme because I’m not an expert in that. And whether or not it becomes legal federally is up to Congress. Whether or not states adopt it under state law in either recreational or medicinal, I don’t walk in that lane, so I don’t really have a comment on that.
But as we go down the road, if you will, in the process, what I’m asking is that people be mindful and thoughtful about what they are doing because otherwise the lessons learned from alcohol to tobacco to opioids, the lessons learned from those products are lost. And so it’s up to Congress to do whatever it’s going to do. People have a voice in that. People vote and elect their representatives and vote on initiatives and things like that. But I can’t tell you how many people in these meetings that I’ve attended over the last couple years, the private landowners who said—and I’ve heard this frequently—that they didn’t think this is what they were voting for when they voted to legalize it. They thought they were simply voting to decriminalize it and they had no idea of the ramifications. And I think that’s a pretty common theme.
I don’t believe in fear mongering. I believe in listening. And paying attention and speaking honestly about the issues that are generated. I’m just hoping that there is a broader dialogue about these issues. I’m not a doctor, I’m not an expert on this, but the fact of the matter is I am grateful that at least from some corners there are people raising these issues.
I just sound repetitive, but I go back to my my ask—that people slow down and be mindful of what we’re doing because it has long-term consequences that we’re already seeing.