We spilled a fair bit of ink on this blog writing about the MORE Act (Marihuana Opportunity and Expungement Act), which is expected to lead to a vote in the House of Representatives tomorrow, December 3rd. The MORE Act ends federal marijuana prohibition and criminalization of cannabis by excluding marijuana from the Controlled Substances Act (CSA). That would of course be great. Assuming the House Version (HR 3884) is passed, it is crucial for the Senate Version (S 2227), sponsored by Vice-President-Elect Kamala Harris, that daylight is also seen in the upper chamber. I suspect it won’t be unless both Democratic candidates win the Georgia runoff in January, which results in Mitch McConnell being replaced as Senate majority leader.
But that’s a question for another day. Right now I want to highlight what would happen if the MORE law soon became law one day because I see some bad information out there. The biggest point of confusion seems to be the idea that cannabis will become legal nationwide if the MORE bill is passed. It will not. Yes, for federal reasons, cannabis is being phased out completely. Not only that, but all federal marijuana convictions are overturned – even the people captured with tons of cannabis in helicopters and submarines. But state laws are not in the least excluded.
Does this mean someone else could be arrested for walking around with an ounce of cannabis the day after the MORE Act went into effect in Boise, Idaho? Yes, it does! This is both a shame and a likely occurrence as most cannabis arrests today are for simple possession only and most are made under state laws and by state police.
Almost four years ago, I stated on this blog that the federal government probably doesn’t have the power to shut down government cannabis programs. Aside from the fact that the CSA contains explicit “anti-preemption” language, the 10th amendment to the US Constitution provides that the federal government cannot “command” states by forcing them to pass laws in the interests of the federal government enact. This applies in the context of cannabis prohibition, and it also applies when the government gives cannabis the green light under the MORE Act or otherwise.
If the MORE bill is passed, we will see an uncomfortable reversal of the current loophole in marijuana policy. Federal agents will no longer prosecute or arrest cannabis traffickers, but state police certainly can. We will have a patchwork of state legality against an allowable federal background (with a 5% federal tax). And a million wrinkles to iron out.
It is true that once the CSA is changed, the government will have some tools for dealing with prohibited locales. Probably the best option is for Congress to obstruct state law through trade clause laws, as it did with the 2018 Farm Bill for the interstate transportation of hemp. It seems late in marijuana, however, with so many states with cannabis licensing programs so far away. The MORE Act may avoid federal licensing altogether for this reason.
Alternatively, Congress could use its purchasing power to encourage states to end the ban. To this end, the MORE Act makes certain federal funds available only to “eligible states” that have taken steps to overturn cannabis convictions and eliminate sentences for cannabis probation officers. This can move the needle in some countries. others are likely to resist.
It’s also important to understand that the MORE Act does not change all federal laws related to cannabis. For example, our company deals with many Food and Drug Administration (FDA) issues for cannabis companies. The whole area will still be a cluster. The FDA has taken the position that under the Federal Food, Drugs, and Cosmetics Act (FD&C), cannabis and cannabis-derived compounds are medicinal products that require FDA approval before being added to foods and beverages as dietary supplements sold or advertised for therapeutic purposes. The MORE Act in its written form does not change the regulatory provisions of the FD&C Act. And even if it were, we would again have the problem of 50 states with a multitude of different, confusing laws in this area.
The MORE Act does a lot, but it doesn’t do everything. At the state and local levels, the effects will be penumbral rather than direct. I fully appreciate and support the MORE Act and hope it will be passed. That said, it’s not the end of the road. Not even close.