The House passage of a bill to federally legalize marijuana this month marked a historic step forward for reform advocates. Yet amid the celebration, there are increasing concerns about certain language that was added to the legislation at the last minute that activists say undermines their social equity goals.
Days before the floor vote, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act was amended in the form of a House Rules Committee Print. While the main thrust of the bill remained intact, including a tax to fund programs to repair the harms of the drug war, a provision was added requiring a federal permit to operate a “cannabis enterprise”—along with restrictions that could ban people with prior marijuana convictions from being eligible.
That runs counter to the principles of social equity that advocates have been pushing for, arguing that it’s not enough to simply end prohibition and that communities most impacted by the enforcement of the war on drugs need to be specifically uplifted in the newly legal market.
There are some nuances to the language, but in general what it says is that, under federal regulations, a permit must be issued in order for certain marijuana businesses to operate. There are a series of considerations that go into a permit approval, but the one advocates view as the most problematic states that it can be suspended or revoked if a person has a past or current legal proceeding related to a felony violation of any state or federal cannabis law.
That would raise questions about their ability to “maintain operations in compliance with this chapter,” the text of the bill says.
It would not be an automatic revocation, however, as the government would need to “issue an order, stating the facts charged, citing such person to show cause why their permit should not be suspended or revoked.” Then a hearing would be held to determine in the permit holder can show “cause why their permit should not be suspended or revoked.”
Read the language in question below:
SEC. 5923. PERMIT.
(a) Issuance.—A person shall not engage in business as a cannabis enterprise without a permit to engage in such business. Such permit, conditioned upon compliance with this chapter and regulations issued thereunder, shall be issued in such form and in such manner as the Secretary shall by regulation prescribe. A new permit may be required at such other time as the Secretary shall by regulation prescribe.
(b) Suspension Or Revocation.—
(1) SHOW CAUSE HEARING.—If the Secretary has reason to believe that any person holding a permit—
(A) has not in good faith complied with this chapter, or with any other provision of this title involving intent to defraud,
(B) has violated the conditions of such permit,
(C) has failed to disclose any material information required or made any material false statement in the application for such permit,
(D) has failed to maintain their premises in such manner as to protect the revenue, or
(E) is, by reason of previous or current legal proceedings involving a felony violation of any other provision of Federal or State criminal law relating to cannabis, not likely to maintain operations in compliance with this chapter,
the Secretary shall issue an order, stating the facts charged, citing such person to show cause why their permit should not be suspended or revoked.
The bill does not define which departmental secretary would be responsible for making the permitting decision as outlined in the text, as that was left out in a drafting error. There are mentions of at least three different secretaries—health and human services, transportation and treasury—throughout the legislation.
There’s another caveat to this, as it doesn’t appear the permit requirement would apply to retail dispensaries. Only businesses that meet the definition of a “cannabis enterprise” would be affected, and that includes “a producer, importer, or export warehouse proprietor,” with producer being defined as “any person who plants, cultivates, harvests, grows, manufactures, produces, compounds, converts, processes, prepares, or packages any cannabis product.”
But even so, advocates are pushing to have the language removed. They point out that, because marijuana criminalization has disproportionately impacted people of color despite comparable usage rates with white people, the policy is inherently discriminatory.
“The felony exclusion provision was not just concerning, for social equity licensees and the organizations and communities that support, there was genuine fear and concern the exclusion would send signals to investors, companies and state and local lawmakers that could have an immediate chilling impact on investment, hiring and support for social equity operators and programs,” Brandon Banks, a board member of the Minority Cannabis Business Association (MCBA), told Marijuana Moment.
MCBA Vice President Kaliko Castille said the organization “worked with House leadership to make clear the intent of Congress to ensure those most impacted by cannabis prohibition would have access to the legal cannabis industry instead of continuing to face criminal penalties for activities generating billions and that any provisions to the contrary would not stand in future legislation.”
Overall, the legislation would federally deschedule cannabis, and those with prior convictions would have their records expunged. The descheduling provisions would be retroactive, too.
The reason the language at issue got into the MORE Act is because much of the text of a separate, previously introduced cannabis reform bill was inserted in the Rules Committee Print shortly before the floor vote. And its inclusion in that legislation, the Marijuana Revenue and Regulation Act, is somewhat curious given that the bill’s lead sponsor is Rep. Earl Blumenauer (D-OR), a fierce advocate for legalization who is intimately familiar with social equity concerns as the co-chair of the Congressional Cannabis Caucus.
When it came to Blumenauer’s attention, he attempted to get it removed from the MORE Act, but there wasn’t enough time between the Rules hearing and the floor vote, a spokesperson for the congressman said. She added that he has since secured a commitment from House Ways & Means Chairman Richard Neal (D-MA) to have the language nixed the next time the bill comes up.
In a letter submitted to the Congressional Record, Blumenauer touted the progress that the legislation represents but added a caveat about the particular section that advocates have raised concerns about.
“No bill is perfect, and the MORE Act contains a provision that is contrary to our legislative intent,” he wrote. “Without hesitation, I am committed to correcting this language to ensure that the millions of Americans, especially Black and Latino people, who have been most harmed by cannabis prohibition can participate equally in this emerging industry. Equity, inclusion and opportunity are fundamental values that must be at the center of all federal cannabis legislation.”
“This is not the end of the story, it’s the beginning of the next chapter,” he said. “This is a fight for racial justice, economic justice, and freedom. This policy is long-overdue.”
It was an oversight that advocates and industry stakeholders, who meticulously review and help draft cannabis bills, share the blame for, Justin Strekal, political director of NORML, acknowledged to Marijuana Moment.
Blumenauer’s office did not provide a response to an inquiry about why the provisions was added to his original bill, the first version of which was filed in 2017. A representative for Sen. Ron Wyden (D-OR), another champion of cannabis reform who sponsored the Senate companion version of the legislation, did not immediately respond to a request for comment on the origins of the marijuana felony ban language.
Queen Adesuyi, policy manager of national affairs for DPA, told Filter that she understands the concerns about “problematic provisions” of the revised MORE Act—but that “it was really difficult to walk away from the entire vehicle because of the longer-term implications that we’re able to see, in terms of our ability to actually move anything at all.”
Of course, it should be noted that while the MORE Act cleared the House, it’s seriously unlikely to get a vote in the GOP-controlled Senate, which is run by anti-marijuana Senate Majority Leader Mitch McConnell (R-KY), before the end of the current Congress. So if Democrats take the bill back up next session, they will have an opportunity to address advocates’ concerns. And Strekal said they have a “commitment” from allies on the Hill to remove the problematic language.
Shaleen Title, a commissioner on the Massachusetts Cannabis Control Commission who has focused on equity issues, wrote in a blog post earlier this month that while advocates are “encouraged by any forward movement on cannabis criminal justice reform, we strongly believe that we will not get racial justice without economic justice.”
“We very much appreciate your support of cannabis legalization and restorative justice and look forward to the opportunity to work with you on changes to the Act that will support the ground breaking cannabis equity work already occurring across the country,” she wrote to lawmakers on behalf of the Cannabis Regulators of Color Coalition.
Other than the permit provision, the bill was also revised before reaching the floor with a series of mostly technical amendments, though there was one significant change as it relates to the proposed tax structure for marijuana.
As now structured, the MORE Act would make it so cannabis would be federally taxed at five percent for the first two years after implementation and then increased by one percent each year until reaching eight percent. After five years, taxes would be applied to marijuana products based on weight rather than price.
The bill would also create a pathway for resentencing for those incarcerated for marijuana offenses, as well as protect immigrants from being denied citizenship over cannabis and prevent federal agencies from denying public benefits or security clearances due to its use.
A new Cannabis Justice Office under the Justice Department would be responsible for distributing funds providing loans for small cannabis businesses owned and controlled by socially and economically disadvantaged individuals. The bill also seeks to minimize barriers to licensing and employment in the legal industry.
It would also establish a Community Reinvestment Grant Program. Tax dollars appropriated to that program would go to job training, legal aid for criminal and civil cases such as those concerning marijuana-related expungements, literacy programs and youth recreation and mentoring services, among other programs.
Some advocates also took issue with other late changes that stipulate that the heads of the Transportation Department and Coast Guard may continue to include marijuana in drug testing programs for safety-sensitive positions and clarify that the expungement provisions only apply to “non-violent marijuana offenders” and bars so-called “kingpins” from obtaining expungements.
“Now that we have the precedent of a bill passing to end marijuana prohibition in the House of Representatives under Democratic control—and with Democratic control returning in the next session—I feel confident that we can improve the bill,” Strekal said. “And it is our hope that working with more stakeholders, we will make many improvements in the bill such as including a post-prohibition regulatory structure that will provide greater certainty to new emerging markets and promote standardization of labeling and weights and metrics as more and more states legalize marijuana in the future.”
Overall, the passage of the legalization legislation could send a strong signal to the incoming presidential administration, and it sets the stage for similar action in 2021—especially if Democrats win control of the Senate after two runoff elections in Georgia next month.
Given President-elect Joe Biden’s former approach to championing punitive anti-drug legislation as a senator and his ongoing obstinance on marijuana legalization at a time when polls show that a clear majority of Americans favor the policy change, there remains some skepticism about his willingness to make good on his campaign promises to achieve more modest reforms he has endorsed, such as decriminalizing possession and expunging records.
A transition document the incoming Biden-Harris administration released last month left out mention of those cannabis pledges. While Vice President-elect Kamala Harris is sponsoring the MORE Act in the Senate, she’s indicated that she would not necessarily push the president-elect to adopt a pro-legalization position.
That said, the president-elect has conceded that his work on punitive anti-drug legislation during his time in Congress was a “mistake.”
For his part, Blumenauer told Marijuana Moment in August that “the Biden administration and a Biden Department of Justice would be a constructive player” in advancing legalization.
Meanwhile, the Congressional Research Service released an analysis of the MORE Act last month, finding that the bill’s passage could “reverse” the current cannabis policy gap that exists between states and the federal government.
Read Blumenauer’s submission to the Congressional Record on the MORE Act below:
Photo courtesy of Mike Latimer.
New Hampshire Marijuana Legalization Effort Runs Up Against New Republican Legislature
“Eventually it will get passed. But I don’t think it will happen until we get a new governor.”
By Christian Wade | The Center Square
Marijuana advocates are continuing a push to legalize the drug for recreational use in New Hampshire, but the effort faces an unlikely path in the Republican-controlled Legislature.
A bipartisan bill filed in the state House of Representatives this month would, if approved, legalize recreational cannabis for adults over 21 and set up a system of regulation and taxation for the drug that would allow retail sales. It’s similar to proposals filed in previous legislative sessions, all of which have failed to win approval.
“The battle continues,” said Rep. Rebecca McWilliams, D-Concord, a primary sponsor of the bill. “We keep refining it and negotiating and trying to come up with something that could potentially get to the two-thirds vote needed to override the governor’s veto.”
The proposal would allow adults 21 and older to possess up to one ounce of weed and would authorize regulated cultivation and retail sales. Adults would be allowed to grow up to six marijuana plants at home. A state-run cannabis commission would set regulations and oversee the new industry. The proposal calls for a 9% tax on recreational pot sales.
But the measure faces a steep climb in the state legislature—which swung back to the GOP in the November 3 elections—not to mention the threat of a veto by Republican Gov. Chris Sununu, who opposes legalization.
McWilliams acknowledges the measure faces long odds in the biennial legislative session and said lawmakers who support the effort lack the votes to override a Sununu veto. But she said the effort is building more support with every passing year.
“Eventually it will get passed,” she said. “But I don’t think it will happen until we get a new governor.”
While marijuana remains an illegal drug under federal law, she said there’s a chance the new Democrat-controlled Congress and White House could lift the federal prohibition on pot.
Nationally, 68 percent of Americans back the legalization of marijuana, according to a recent Gallup poll, which noted that support has been inching up steadily over the years.
To date, 15 states, the District of Columbia, and the U.S. territory of Guam have legalized recreational marijuana. Thirty-six states have medical marijuana programs.
New Hampshire has often been described as a “cannabis island” with neighboring states and Canada allowing recreational marijuana cultivation and retail sales.
While the Granite State decriminalized marijuana possession in 2017, recreational growing and sales are not authorized.
In 2014, the Democrat-controlled House approved a legalization bill but it failed to pass the Senate. Similar proposals have been refiled every session, but have failed to gain traction.
The state has also allowed medical marijuana dispensaries since 2013, but cultivating the drug for personal use is still a felony.
Lawmakers approved a bill in 2019 that would have allowed medical pot patients to grow their own supply, but Sununu vetoed it, citing public safety concerns.
This piece was first published by The Center Square.
American Medical Association Asks Court To Overturn Medical Marijuana Vote In Mississippi
Two medical associations are throwing their support behind a lawsuit challenging the constitutionality of the medical marijuana ballot initiative that Mississippi voters overwhelmingly approved in November, arguing that it creates “risks to public health” and places a “burden” on physicians.
The American Medical Association (AMA) and its state affiliate, the Mississippi State Medical Association (MSMA), recently filed an amicus brief backing the legal challenge being considered by the state Supreme Court, which was brought by the city of Madison just days before the election.
The lawsuit argues that legalization proposal is invalid because of a state law that dictates the percentage of signatures required per district to qualify a ballot initiative.
While Mississippi’s secretary of state and attorney general have strongly criticized the suit, calling it “woefully untimely” and contesting the merits, AMA and MSMA are backing the challenge nonetheless.
“Making sure the constitutional amendment map is followed is always important, but given the nature of the initiative at issue and the substantial ramifications it poses for Mississippi’s public health and the medical community, particular care is warranted here,” the brief states, according to a blog post published by AMA on Friday.
The groups further argue that, outside of the statutory concerns outlined in the suit, the medical cannabis legalization initiative “poses significant risks to public health and puts a burden on Mississippi physicians.”
“While it is possible there may be beneficial medicinal uses of marijuana, numerous evidence-based studies demonstrate that significant deleterious effects abound,” the brief states, adding “without question, the public health risks are immense.”
Additionally, because marijuana remains federally illegal, the voter-approved measure would put physicians in “quite the pinch,” it says. “Yet physicians will be expected by their patients (though perhaps not required by Initiative 65) to sign off on certifications to receive their supply. Perhaps no liability will lie under state law, but what about federal law?”
In fact, federal courts have ruled that doctors have a First Amendment right to discuss medical cannabis with their patients without risking federal sanction.
“As everyone knows, all it takes to file a lawsuit is a piece of paper and a filing fee, so even if a physician is judged correctly and immunity is appropriate, the matter will still have to be litigated,” the AMA and MSMA brief continues. “And with increased exposure and litigation comes increased costs, not least of which is rising professional liability insurance premiums.”
The legal challenge brought by Madison cites a state law stipulating that “signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot.” But that policy went into effect when Mississippi had five congressional districts, and that’s since been reduced to four, making it mathematically impossible to adhere to.
Advocates see desperation in the court filing, with the medical associations now making a last-ditch effort to overturn the will of voters.
“These are cynical attempts to undermine the democratic process,” Carly Wolf, state policies coordinator for NORML, said. “Legalization opponents have shown time and time again that they cannot succeed in either the court of public opinion or at the ballot box.”
“Thus, they are now asking judges to set aside the votes of over a million Americans in a desperate effort to override undisputed election outcomes,” she said. “Whether or not one supports marijuana legalization, Americans should be outraged at these overtly undemocratic tactics.”
Paul Armentano, deputy director of NORML, said “AMA’s position is woefully out of step with both public opinion and scientific consensus, as well as with the opinions of the majority of physicians.”
“It is regrettable that this organization would go on record in attempting to nullify the vote of a supermajority of Mississippi voters,” he said.
It’s also not especially surprising that these particular groups would join in this legal challenge given their earlier attempts to get voters to reject the reform initiative.
Weeks before the vote, AMA and MSMA circulated a sample ballot that instructed voters on how to reject the activist-led cannabis measure. The mailers said the associations were “asking for you to join us in educating and encouraging our population to vote against Initiative 65.”
Ultimately, however, nearly 74 percent of Mississippi voters approved the legalization initiative.
It will allow patients with debilitating medical issues to legally obtain marijuana after getting a doctor’s recommendation. It includes 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would be allowed to possess up to 2.5 ounces of marijuana per 14-day period.
Marijuana Moment reached out to AMA and MSMA for additional information about the brief, which has not yet been posted on the state court’s public docket, but representative did not immediately respond.
The Mississippi case is just one example of legalization opponents asking the courts to overturn the will of voters who approve marijuana reform.
In South Dakota, another legal challenge against the constitutionality of a legalization initiative is playing out. In this case, plaintiffs—with the backing of Gov. Kristi Noem (R)—are claiming that the recreational marijuana measure violates a state statute requiring that proposals that appear on the ballot on deal with a single subject.
Over in Montana, opponents of a voter-approved initiative to legalize cannabis for adult use attempted to get the state Supreme Court to invalidate the proposal ahead of the vote, but the justices rejected that request, arguing that they failed to establish the urgency needed to skip the lower court adjudication process. They didn’t rule on the merits, however.
The plaintiffs then announced they were pursuing action in a lower court, arguing that the statutory proposal unlawfully appropriates funds, violating a portion of the state Constitution that prohibits such allocations from being included in a citizen initiative.
Separately, the Nebraska Supreme Court ruled in September that a medical marijuana legalization initiative could not appear on the state’s November ballot following a legal challenge, even though activists collected enough signatures to qualify.
The court determined that the measure violated Nebraska’s single-subject rule that limits the scope of what can be placed on the ballot before voters. Activists have already introduced a new initiative that they say will satisfy the court’s interpretation of state law—and their also working on a broader adult-use legalization measure.
New York Governor Releases More Details On Marijuana Legalization Proposal
New York Gov. Andrew Cuomo (D) has released more details of his marijuana legalization proposal, including plans to reinvest in communities most impacted by the war on drugs.
Following his State of the State address last week, in which the governor said enacting the reform could boost the economy while promoting social equity, he unveiled an outline of his agenda that provides more insights into what the state’s legal cannabis market could look like. Next, he’s expected to release the full budget proposal on Tuesday, which will contain much more detailed legislative language.
The State of the State Book released on Friday says Cuomo’s upcoming proposal would create an Office of Cannabis Management to regulate the program, establish national standards and best practices to encourage responsible marijuana consumption and provide for “robust social and economic equity benefits to ensure New York’s law will create an egalitarian adult-use market structure that does not just facilitate market entry but ensures sustained market share for entrepreneurs in communities that have been most harmed by cannabis prohibition.”
Notably, it also states that the plan will “correct past harms by investing in areas that have disproportionally been impacted by the war on drugs, understanding that expunging past cannabis convictions helps to correct the injustice faced on the day that someone was arrested, but fails to correct the lasting harms that arrest has had on citizens, families, and communities.”
That’s important, as the governor in past years has pushed for marijuana tax revenue to be put into the state’s general fund, rather than specifically allocating resources for community reinvestment, as some lawmakers and advocates have urged.
That said, it remains to be seen exactly how the governor’s forthcoming budget will go about “investing” in communities that have been harmed by past prohibition enforcement and whether it will be deemed adequate by legislators and activists who have balked at his past proposals.
Cuomo has included legalization in his last two annual budget plans, but the issue has consistently stalled over details in negotiations.
That said, the legislature will have more influence this year after Senate Democrats secured a supermajority in the November election. If Cuomo were to veto any bill over details he didn’t like, they could potentially have enough votes to override him.
The governor’s new outline also talks about making investments in research into harm reduction and education campaigns to deter youth use and impaired driving.
“Cannabis legalization will create more than 60,000 new jobs, spurring $3.5 billion in economic activity and generating an estimated $300 million in tax revenue when fully implemented,” the document says.
A separate section describes plans to bolster the state’s hemp industry.
To accomplish that, Cuomo will call together a workgroup “composed of hemp growers, researchers, producers, processors, manufacturers, and trade associations to make recommendations for the further development of hemp as a multi-use agricultural commodity and a mature cannabinoid wellness market.”
“The hemp workgroup will explore ways to provide more opportunities for New York growers and manufacturers and work to help facilitate the development of safe New York products that will meet the needs of informed consumers,” the plan says. The group’s recommendations could build upon regulations for hemp and CBD that were developed last year.
But for many advocates, it’s recreational legalization that has the spotlight this session. And to that end, New York lawmakers have made comments in recent months that indicate they feel the reform is inevitable, despite differing opinions on the specifics.
The top Republican in the New York Assembly said last month that he expects the legislature to legalize cannabis this coming session.
Senate Majority Leader Andrea Stewart-Cousins (D) said in November that she also anticipates that the reform will advance next year, though she noted that lawmakers will still have to decide on how tax revenue from marijuana sales is distributed.
Cuomo also said that month that the “pressure will be on” to legalize cannabis in the state and lawmakers will approve it “this year” to boost the economy amid the health crisis.
The push to legalize in New York could also be bolstered by the fact that voters in neighboring New Jersey approved a legalization referendum in November.
Legislators prefiled a bill to legalize cannabis in New York earlier this month. The legislation, introduced in the Senate by Sen. Liz Krueger (D) and 18 other lawmakers, is identical to a version she filed last year that did not advance.
Separately, several other bills that focus on medical marijuana were recently prefiled in New York, and they touch on a wide range of topics—from tenants’ rights for medical cannabis patients to health insurance coverage for marijuana products.