Civil rights groups are pushing for a vote on a bill to federally legalize marijuana to take place in the U.S. House of Representatives this month—but some activists who have experience in the state-level regulatory space are now proposing changes to the legislation to ensure that the market is equitable and empowers communities that have been most impacted by prohibition to benefit from the new industry.
Without the modifications, they say, legal cannabis sales could end up in the hands of a few large corporations—”putting most small cultivators and retailers out of business.”
The equity advocates have submitted a pair of alternative amendments of the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which cleared the House last year and was recently refiled by Judiciary Committee Chairman Jerrold Nadler (D-NY). The proposals come from the Parabola Center, a newly established organization that is working to inform legalization legislation federally and at the state-level with the intent of promoting social justice-centered reforms.
The new suggested amendments were shared exclusively with Marijuana Moment and are being sent to cannabis reform champions in the House and Senate for consideration on Thursday.
In principle, there’s broad agreement on the legislation, Parabola Center’s Shaleen Title, a former Massachusetts cannabis regulator, told Marijuana Moment. But in practice, there’s a sense among some advocates that federally descheduling cannabis without rigorous regulations will not have the intended impact for disproportionately impacted communities.
“We hope this project inspires the mass movement that legalized marijuana to become more proactive and intentional in deciding what the national marijuana marketplace will look like,” Title said.
In order to achieve equity, the advocates say there must also be a conversation around how to prevent large corporations—more specifically Big Tobacco and Big Alcohol—from dominating the market once the restraints of federal prohibition are lifted. There’s a sense of urgency to address that aspect of the reform, with companies like Amazon now lobbying in favor of the MORE Act, for example.
A summary of the proposed amendments from the Parabola Center says that the MORE Act’s sponsors “deserve full credit for their determination to address” equity-focused reforms, but expresses concern that the federal government is not yet ready to effectively oversee a national marijuana market, noting that its “experience with cannabis until now has been exclusively limited to interdiction and prosecution predominantly targeting Black and Latino communities.”
The advocates say the government “needs time to develop the tools and skills to regulate marijuana in a way that repairs the harms of the war on drugs” and points out that states are also struggling to oversee the industry “in an equitable way.”
Regulating marijuana isn’t just a matter of applying existing rules for alcohol and tobacco, Parabola says.
“While superficial similarities exist, to equate the prohibition and regulation of alcohol to that of cannabis is legally and historically inaccurate. It is not a sound basis for detailed cannabis policy,” their summary states. “Neither alcohol nor tobacco regulations have been developed to repair damage on the scale of that caused by the war on drugs. Further, neither of those regulatory models are ideal. As a country, we are still trying to undo the public health damage of letting Big Tobacco run wild.”
“Ultimately, if we are serious about creating a fair and equitable national industry, we must allow the federal government to develop its own core competency in cannabis regulation and prevent the domination of the market by a small number of corporations in the meantime.”
As introduced in Congress, the MORE Act would deschedule cannabis and take steps to promote equity in the industry. That includes by providing for expungements of prior marijuana convictions and reinvesting cannabis tax dollars into disproportionately impacted communities.
However, the descheduling component could inadvertently undermine the the social justice goals of the bill if steps aren’t taken to prevent the corporate consolidation of the industry, Parabola says. There’s a “high likelihood that such removal will result in a handful of national cannabis firms rapidly dominating the market and putting most small cultivators and retailers out of business,” according to the summary.
In other words, advocates see room for improvement, and they’re pushing for the incorporation of one of two proposed regulatory approaches to federal reform.
The first would give additional power to the Office of Cannabis Justice (OCJ) established under the MORE Act, letting the autonomous Justice Department body that would be created by the legislation dictate marijuana permitting. As drafted, that authority would be given to the Treasury Department.
The office would “regulate interstate commerce and enforce anti-cartel restrictions, preventing the creation of a national oligopoly similar to the state-level oligopolies that currently exist,” the summary states.
Federal funding could also be withheld from states that fail to meet certain racial justice benchmark standards under the revised plan.
The second, separate Parabola proposal is being described as a “cooperative federalism approach” that would end the federal criminalization of personal possession, cultivation and social sharing under the Controlled Substances Act (CSA)—but it would not formally deschedule marijuana and would allow states to continue operating under the broader status quo of prohibition.
States that have legal markets could fully opt out of CSA enforcement if they meet certain criteria, specifically tied to racial justice objectives.
The purpose of that approach is to “protect individual cannabis consumers from federal arrest and prosecution while allowing states to continue to experiment with different types of equitable commercial markets.”
Asked why the group proposed two options for lawmakers, Title said they “thought it would be valuable to illustrate that there’s a whole spectrum of regulatory approaches between prohibition and descheduling that doesn’t protect state programs.”
“Those are the approaches we see discussed most often, but they essentially represent a police free-for-all versus a corporate free-for-all, both bad choices in our view,” she said.
Here’s a closer look at the details of each proposal:
-Under this plan, OCJ would regulate marijuana permitting, and no person or corporation would be able to own more than five cannabis licenses in order to support small business participation in the industry.
-While the MORE Act was amended this Congress to exclude a section barring market participation by people with former felony convictions, advocates recommend replacing that language. The proposal says that except for offenses based on marijuana sales, there should be “mandatory disqualification of applicants who have violated the RICO Act or engaged in substantial fraud, abusive labor practices, human trafficking, slavery, intentional failure to pay wages, substantial harm to public health, the environment or an endangered species, terroristic actions, money laundering, misappropriation of public funds, and/or public corruption.”
-OCJ would have authority over regulating interstate commerce and would be required to study state markets to develop the best approach. The proposal says that could take the form of regional compacts allowing for limited interstate commerce between certain states or allowing only equity businesses to sell cannabis across state lines.
-Federal funds could be withheld from states that fail to meet “racial justice benchmarks,” and portions of federal tax revenue could go to states that are meeting those standards.
-As with the original MORE Act, this approach would not preempt state law. Personal possession, cultivation and social sharing would be federally legalized while marijuana remains a controlled substance.
-For states that follow certain federal guidelines for cannabis regulation, the plant would only be legal within their borders. Interstate commerce would not be permitted under this approach.
-The proposers say this will “allow state governments to continue their experimentation while giving the federal government time to understand those models and develop its own evidence-based cannabis policies.”
“The key is that both approaches eliminate federal penalties for consumers and patients using cannabis, but they don’t open the doors to corporate consolidation we wouldn’t be able to take back,” Title said. “It’s important not to conflate consumer/patient rights with corporate profits. One is an immediate need and one isn’t.”
Separately, a federal prisoner who received clemency for his cannabis conviction from President Donald Trump recently wrote to members of Congress about how the MORE Act’s resentencing and expungement provisions could leave some impacted people without the relief that lawmakers intend.
These proposals also come as Senate leadership continues to work on their own version of legalization legislation, which Majority Leader Chuck Schumer (D-NY) has repeatedly said will be introduced “soon.”
Senate Finance Committee Chairman Ron Wyden (D-OR), who is also working the bill alongside Schumer and Sen. Cory Booker (D-NJ), also said to expect a filing “very soon.”
Schumer has said that the proposal they’re working on will “ensure restorative justice, public health and implement responsible taxes and regulations.” He also made a point in March to say that it will specifically seek to restrict the ability of large alcohol and tobacco companies to overtake the industry.
Instead, it will prioritize small businesses, particularly those owned by people from communities most impacted by prohibition, and focus on “justice, justice, justice—as well as freedom,” he said.
Read the summary of the advocates’ MORE Act proposals and the text of the amendments below:
Photo courtesy of Carlos Gracia.
Virginia Has Sealed 64,000 Marijuana Distribution Charges Since Legalization Took Effect This Summer
“These aren’t just numbers and there are families attached.”
By Ned Oliver, Virginia Mercury
Virginia has sealed records documenting more than 64,000 misdemeanor marijuana distribution charges since the state legalized the drug in July.
The figure came out Thursday during a meeting of the legislature’s Cannabis Oversight Commission.
Officials said the records were scrubbed from the state’s criminal record database, which is used by employers like school boards, state agencies and local governments to screen employees.
The state had already sealed 333,000 records detailing charges of simple possession last year after the state reduced the offense to a civil infraction on par with a traffic offense, said Shawn G. Talmadge, the Deputy Secretary of Public Safety and Homeland Security.
Lawmakers directed the state to expand that effort when they voted to broadly legalize recreational use of marijuana earlier this year.
The legislature also agreed to a broader expungement reform that will automatically seal other misdemeanor charges, including underage possession of alcohol, use of a fake ID, petit larceny, trespassing and disorderly conduct. Talmadge said those charges will remain in the system until the state finishes updating the software it uses to track criminal records.
“As of right now, the process is proceeding,” he said.
The Virginia Joint Commission on Cannabis Oversight is meeting now. You can find the agenda and links to livestream and to provide public comment at https://t.co/f1wsPn7SV7
— Jennifer McClellan (@JennMcClellanVA) October 14, 2021
Members of the oversight commission also heard from two advocates who urged them to move fast to address people currently imprisoned for marijuana offenses—a category of people the legalization legislation passed this year did not address.
Chelsea Higgs Wise, the leader of the advocacy group Marijuana Justice, and Gracie Burger, with the Last Prisoner Project, said Department of Corrections data suggests there are currently 10 people being held solely on serious marijuana charges.
They said it remains unknown how many more are being held because of marijuana related probation violations.
“These aren’t just numbers and there are families attached,” Burger said.
DEA Proposes Dramatic Increase In Marijuana And Psychedelic Production In 2022, Calling For 6,300 Percent More MDMA Alone
The Drug Enforcement Administration (DEA) is proposing a dramatic increase in the legal production of marijuana and psychedelics like psilocybin, LSD, MDMA and DMT to be used in research next year.
In a notice scheduled to be published in the Federal Register on Monday, the agency said there’s been a “significant increase in the use of schedule I hallucinogenic controlled substances for research and clinical trial purposes,” and it wants authorized manufacturers to meet that growing demand.
DEA had already massively upped its proposed 2021 quota for cannabis and psilocybin last month, but now it’s calling for significantly larger quantities of research-grade marijuana and a broader array of psychedelics to be manufactured in 2022.
It wants to double the amount of marijuana extracts, psilocybin and psilocyn, quadruple mescaline and quintuple DMT. What especially stands out in the notice is MDMA. The agency is proposing an enormous 6,300 percent boost in the production of that drug—from just 50 grams in 2021 to 3,200 grams in the coming year—as research into its therapeutic potential continues to expand.
LSD would see a 1,150 percent increase, up to 500 grams of the potent psychedelic.
Marijuana itself would get a 60 percent boost under DEA’s proposal, up to 3.2 million grams in 2022 from the 2 million grams last year.
Here’s a visualization of the proposed quota increase from 2021 to 2022 for marijuana and cannabis extracts:
For all other THC, psilocybin, psilocyn and MDMA:
And for other psychedelic substances like LSD, mescaline and DMT:
DEA said in the Federal Register notice that it has been receiving and approving additional applications to “grow, synthesize, extract, and manufacture dosage forms containing specific schedule I hallucinogenic substances for clinical trial purposes” to achieve these ambitious quotas.
“DEA supports regulated research with schedule I controlled substances, as evidenced by increases proposed for 2022 as compared with aggregate production quotas for these substances in 2021,” the agency said, adding that it working “diligently” to process and approve marijuana manufacturers applications in particular, as there’s currently only one farm at the University of Mississippi that’s permitted to cultivate the plant for research.
“Based on the increase in research and clinical trial applications, DEA has proposed increases in 3,4- Methylenedioxyamphetamine (MDA), 3,4-Methylenedioxymethamphetamine (MDMA), 5-Methoxy-N,N-dimethyltryptamine, Dimethyltryptamine, Lysergic acid diethylamide (LSD), Marihuana, Marihuana Extract, Mescaline, Psilocybin, Psilocyn, and All Other Tetrahydrocannabinols to support manufacturing activities related to the increased level of research and clinical trials with these schedule I controlled substances.”
Here are the exact numbers for the proposed 2021 and 2022 quotas:
|All other tetrahydrocannabinol||1,000||2,000|
A 30-day public comment period will be open after the notice is formally published on Monday.
It’s difficult to overstate just how significant the proposed 2022 increases are, but it’s certainly true that scientific and public interest in marijuana and psychedelics has rapidly increased, with early clinical trials signaling that such substances show significant therapeutic potential.
National Institute on Drug Abuse (NIDA) Director Nora Volkow told Marijuana Moment in a recent interview that she was encouraged by DEA’s previous proposed increase in drug production quota. She also said that studies demonstrating the therapeutic benefits of psychedelics could be leading more people to experiment with substances like psilocybin.
Advocates and experts remain frustrated that these plants and fungi remain in the strictest federal drug category in the first place, especially considering the existing research that shows their medical value for certain conditions.
A federal appeals court in August dismissed a petition to require the DEA to reevaluate cannabis’s scheduling under the Controlled Substances Act. However, one judge did say in a concurring opinion that the agency may soon be forced to consider a policy change anyway based on a misinterpretation of the therapeutic value of marijuana.
Separately, the Washington State attorney general’s office and lawyers representing cancer patients recently urged a federal appeals panel to push for a DEA policy change to allow people in end-of-life care to access psilocybin under state and federal right-to-try laws.
Image element courtesy of Kristie Gianopulos.
Supreme Court Won’t Hear Case On Legalizing Safe Drug Consumption Sites, But Activists Are Undeterred
The U.S. Supreme Court (SCOTUS) has rejected a request to hear a case on the legality of establishing safe injection sites where people can use illicit drugs in a medically supervised environment.
The justices announced on Tuesday that they decided against taking up the case raised by the nonprofit Safehouse, despite the pleas of attorneys general from 10 states and D.C. who recently filed amici briefs urging the court’s involvement.
Representatives from 14 cities and counties, as well as the mayor of Philadelphia, which is at the center of the current case, also filed briefs in support of the case in recent days.
Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration. It filed a petition with the nation’s highest court in August to hear the case.
But while the Supreme Court declined to take action—and the Biden administration passed up its voluntary opportunity to weigh in at this stage, which may well have influenced the justices’ decision—activists say the battle will continue at a lower federal court level, where the administration will have to file briefs revealing its position on the issue.
Disappointed but not surprised U.S. Supreme Court declined to hear our case. We’re pursuing our claims in federal court. As that litigation proceeds, Biden administration will have to take a position, which it avoided by waiving its right to respond to our Supreme Court petition.
— Safehouse (@SafehousePhilly) October 13, 2021
“We were disappointed that the government chose not to respond to our petition,” Safehouse Vice President Ronda Goldfein told Filter. “They said, ‘We’re going to waive our right to respond,’ [and] the Supreme Court declined to review our case. Ordinarily that sounds like the end of the road—but in our case we are still pursuing our claims in a different venue.”
That venue will be the the federal district court in Philadelphia, where activists plan to submit multiple arguments related to religious freedom and interstate commerce protections. The Biden administration will be compelled to file a response in that court by November 5.
“If they don’t respond, they lose,” Goldfein said.
A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—previously filed a brief urging the Supreme Court to take up Safehouse’s safe injection case.
Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.
If the Supreme Court were to have taken the case and rule in favor of Safehouse, it could have emboldened advocates and lawmakers across the country to pursue the harm reduction policy.
The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.
Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.
A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.