By Raza Lawrence Esq. (Margolin & Lawrence)
The cannabis industry reached a significant milestone on December 4, 2020, when for the first time ever, the House of Representatives passed a bill to end federal cannabis prohibition. Notably, the MORE (Marijuana Opportunity Reinvestment and Expungement) Act de-schedules cannabis, completely removing it from the federal Controlled Substances Act “schedules,” where it is currently listed in the most stringent category, Schedule 1, reserved for drugs with no medical benefit and a high potential for abuse. Other more modest proposals, including the one Joe Biden rolled out during his Presidential campaign, sought to re-schedule cannabis from Schedule 1 to Schedule 2, the same category as OxyContin and fentanyl, allowing it to be sold only as part of an FDA-approved drug to people with doctor’s prescriptions. Biden’s proposal also sought to decriminalize simple possession of cannabis for personal use, but did not allow for any commercial cannabis activity outside the realm of prescription drugs.
The MORE Act passed with a 228-164 majority, mostly along party lines, except for six Democrats voting against the bill and five Republicans plus Libertarian Justin Amash voting in favor of it. Some Republicans voting against the MORE Act maintained that they were not against cannabis legalization in theory, but did not support this bill because of its excessive taxes and regulation. For example, Kentucky Representative Thomas Massie tweeted on December 2: “I wish @SpeakerPelosi was serious about repealing the federal prohibition on marijuana. I could cross the aisle to vote on it if it weren’t being used as a vehicle to pass new taxes and spending. Give us a clean Bill or at least allow amendments to be heard.” Others voting against the bill claimed it was simply bad timing, and that the bill shouldn’t be made a priority until Congress passes additional Covid-related economic relief.
While its vision of de-scheduling cannabis at the federal level is inspiring, he MORE Act certainly has critics within the cannabis industry. It includes a new 5% federal tax on all cannabis products, at a time when many cannabis businesses are struggling to comply with already- high local and state cannabis tax rates. It also imposes a new bureaucracy on the industry, requiring all cannabis producers to obtain a new federal permit which would likely come with many new regulations, and including a new Office of Cannabis Justice within the Department of Justice. In addition, the bill included language that would potentially bar anyone who has ever been arrested or convicted for a cannabis offense from participating in the industry going forward – further exacerbating the harms of the War on Drugs and cutting out the people who built the cannabis industry and have the greatest knowledge and expertise.
While the bill could doubtless be improved, it’s hard to deny that the House of Representatives passing a bill to end cannabis prohibition represents a major shift in our country’s approach to cannabis. Over 2/3 of US adults now believe cannabis should be legal. The Senate, however, is currently controlled by Republicans, and the prevailing view is that the Senate will not pass MORE Act, which would be required for it to become law.
Even if the MORE Act does not pass, there is an emerging consensus across the country and across ideological lines that cannabis should be made legal. Several Republican-dominated states have already legalized cannabis at the state level. Given the now-prevailing view that cannabis should be legalized, it appears highly likely that both houses of Congress will eventually agree to end federal cannabis prohibition, whether through an revised MORE Act or a brand new bill with more bi-partisan appeal. Such a bill is likely to gain more traction after we have addressed some of the immediate economic crises relating to Covid-19 and lockdown orders. If Congress, for any reason, fails to pass a law cannabis prohibition, then President Biden has the independent authority to remove cannabis from the Controlled Substances Act schedules, an action that would significantly improve his reputation among voters concerned by his record of ramping up the War on Drugs and mass incarceration.
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