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.