This past week, cannabis history was unmistakably made. While the federal legalization battle will continue to fight on, a piece of legislation that would remove cannabis from the severe Schedule I of the federal list of Controlled Substances and attempt to right the devastating and life-altering wrongs committed by The War on Drugs has reached the highest level of approval within the Legislative branch when a Congressional committee approved the bill with a 24-10 majority.
The Kamala Harris-authored Marijuana Opportunity Reinvestment and Expungement Act, commonly known as The MORE Act, contains arguably the most far-reaching ramifications and improvements of any cannabis bill besides the equally as important Veterans Safe Harbor Act. Co-sponsored by Harris’ Democratic competition of New Jersey Senator Cory Booker and Massachusetts Senator Elizabeth Warren, the bill’s language reads that the bill would “decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes.”
In a state whose citizens continue to be horribly affected by the ever present consequences of the drug war, The MORE Act would be monumental. In particular, the legal ramifications and possible improvements for Texans could be endless and yet through all the excitement, could also become lost in translation.
As the many sections and clauses of the bill could be easily confusing to those who haven’t passed the Bar exam, Texas Cannabis Collective recently spoke with one of our favorite attorneys, Dallas-based law firm Ritter-Spencer partner with a specialty in CBD/hemp compliance and law, Chelsie Spencer.
JK: From a legal standpoint, how would you envision The MORE Act changing Texas’cannabis laws on the state level? Would the Legislature still have to file a bill or would federal decriminalization be able to get around Texas’ lack of ballot initiative powers?
CS: Just as with the recent hemp legalization, the Texas legislature would need to pass legislation here to amend our penal code’s scheduling of marijuana. The best example of this in action is what we actually saw play out in the hemp industry this year. Though the 2018 Farm Bill amended the Controlled Substances Act and removed properly sourced hemp from the scheduling of marijuana at the federal level, Texas then had to act by passing House Bill 1325 to remove hemp from our state scheduling of marijuana and tetrahydrocannabinol. We had a six-month window here in Texas where hemp and hemp-derivatives remained illegal at the state level until HB 1325 passed on June 10, 2019.
JK: Since business law is your specialty, how do you view a possible legal marketplace in Texas? Would it be a successful endeavor or would the regulations and government interference be too severe?
CS: Though Texas historically adopts a hands-off approach to regulation of private enterprise, I do not anticipate that approach would carry over into the cannabis industry. Realistically, it could not. For states with medicinal and recreational programs, it often takes robust state oversight and regulatory agencies to monitor and regulate these programs. For example, how does the state ensure that children are not provided access to or enticed to ingesting a marijuana product? And before I receive 10,000 emails from the cannabis community, yes, I am aware that no one has ever overdosed from cannabis alone.
However, if you speak to medical practitioners in recreational states, particularly those in emergency care services, ingestion of cannabis by children (setting aside those actually needing the substance for medicinal purposes) is a real problem. It can lead to a very scary and debilitating experience for that child who thought they were simply eating a regular gummy bear they found on the counter. Most state regulatory agencies work to ensure public health and safety is secure by, for example, introducing tamper proof packaging laws or labeling laws. You would think edible manufacturers would avoid cartoons or other insignia or markings that attract or entice a child to ingest the product, but this simply is not the case. In recent years, we have seen companies deliberately package their cannabis products to replicate actual candy company packaging, such as Hershey’s. This is one limited example, but this is precisely why states have to be proactive and involved in the regulation.
If the MORE Act were to pass, it would rectify several of the problems cannabis businesses face today. They would no longer be subject to IRS Section 280(e) and instead would face a 5% excise tax at the federal level. They would have access to banks, merchant processing services, and would be eligible to trade in securities, among other implications.
JK: Because many Texans still deal with the aftermath of a cannabis conviction, how could the expungement section of the MORE Act help those citizens finally have a second chance?
CS: Expunction of cannabis offenses for non-violent offenders could have far reaching impacts. If a person was convicted of a felony-controlled substance conviction for marijuana and that is their only offense, the implications of that offense being expunged are far reaching. In an ideal world, they may then be able to vote, sit on a jury, obtain jobs without disclosure of a conviction, own a firearm, and more. However, in my past life as a federal criminal defense attorney, I can tell you expunctions unfortunately don’t always work as they should. What becomes erased in one state may exist in another; thus, I would hope that the MORE Act’s trust fund initiatives would work towards establishing a unified electronic system available to law enforcement. We would certainly see hiccups in implementation in the first few years.
JK: As a whole, how would the MORE Act repair the horrific societal damages of The War on Drugs?
CS: Expunction is the first and foremost progress toward social reform in the Act. The Act would also create a Community Reinvestment Grant Program that would provide services to those most impacted by the war on drugs. Some of the enumerated services in the bill text are job training, funding for expungement of cannabis convictions, youth recreation and mentoring programs, and reentry services.
Frankly, like most legislation, those are fluff words. We know what they mean in principle, but it would be up to the administering agency that governs the program to address how that actually plays out. Importantly, the Act would further amend our immigration laws to provide that cannabis convictions or usage cannot impact immigration status.
Unfortunately, the damage from the war on drugs is already done. It’s here, we’ve seen it, people have lived it. No Bill is going to remedy that. You cannot give someone years of their life back from incarceration or provide an elderly offender the opportunity he or she lost to attend college forty years ago thanks to that offense on their record. You can’t erase a deportation of an individual for a cannabis conviction fifteen years ago. We can’t erase the proven statistical disparate impact that the war on drugs has had on our country. The only thing the country can do is move forward, ensure that the funds in the Community Grant program would be appropriately spent, and assist those who remain incarcerated for a cannabis conviction in reentry into society.
Candidly, I unfortunately do not have high expectations for the MORE Act in our Senate. While the social justice and reform component is certainly admirable, there are members in our Senate that will not view this Act favorably.