On November 20, 2019, the U.S. House Judiciary Committee approved the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884) first introduced by Sen. Kamala Harris (D–CA) in July 2019. The MORE Act seeks to decriminalize marijuana by removing the drug “marihuana” and its psychoactive component, Tetrahydrocannabinol (THC), from the DEA’s list of banned substances. Currently, marijuana and THC are DEA Schedule I drugs, alongside heroin and cocaine. Federal courts would expunge past convictions for marijuana related crimes and a 5% tax on marijuana products would go into a trust designed to help people disproportionately impacted by the "war on drugs," including job training and treatment for substance abuse.
Does the MORE Act stand any greater chance of enactment? It’s hard to say. Many pieces of legislation have attempted to decriminalize marijuana before and failed. The Rohrbacher-Blumenaur amendment to the approved federal budget was one of the temporary successes. The amendment prohibited the Justice Department from spending any resources on prosecuting participants in state legalized programs. However, the amendment was not part of the most recent approved federal budget.
The 2018 Farm Bill federally legalized the cultivation of hemp, subject to significant restrictions including requiring a state hemp regulation program approved by the USDA. The 2018 Farm Bill defined hemp, also a cannabis, as containing less than 0.3% THC. While the bill removed hemp from the DEA Schedule I list, it does not expressly permit the sale of hemp derived products containing CBD – its key medicinal component – leaving consumers and business owners baffled.
The conflicts in federal law agencies continue. Earlier this year, the United States Patent and Trademark Office (USPTO) began accepting trademark applications for cannabis products, provided the applicant declared all goods contained less than 0.3% THC in accordance with the 2018 Farm Bill. This was a marked change in policy long overdue given the USPTO had granted patents for marijuana products and inventions for decades, including one to the U.S. government. Also in 2018, the FDA approved Epidiolex, the first approved drug containing CBD. Yet, on November 25, 2019, the FDA issued cease and desist orders to 15 companies for selling CBD products and updated its consumer warnings on the “dangers” of CBD use. Cannabis companies were under close public scrutiny earlier this year after multiple reports of illnesses believed to be linked to vaporized marijuana use.
Cannabis continues to be a complicated and dynamic area of business with significant legal implications. The MORE Act is yet another piece in the puzzle in the path to federal legalization. Given the state of U.S. congress and the current administration, it is unlikely to take priority. Meanwhile, Canada and Mexico are well on their way to full adult use (recreational) programs and states continue to develop their own legal programs, including Ohio, widening the gap for the U.S. federal government to ultimately close.
For more information, please contact Brendon Friesen.