Landmark Marijuana Legislation Moves through Congress

On November 20, 2019, the House Judiciary Committee passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019. The historic bill was sponsored by House Judiciary Chairman Jerrold Nadler (D-NY) and can now move to a floor vote in the House of Representatives.

A bit of background is in order. Thirty-three states and the District of Columbia have legalized medical marijuana. Eleven of those 33 states have legalized recreational use of marijuana. However – and importantly – marijuana, whether medical or recreational remains illegal under federal law. According to the Controlled Substances Act (CSA), marijuana is classified as a “Schedule 1” drug, meaning it has no currently accepted medical use and carries a high potential for abuse. Examples of Schedule 1 drugs under the CSA are heroin, LSD, and methamphetamine. Most researchers and physicians who are familiar with marijuana argue that it should not be in the same category as heroin, LSD, and other truly harmful drugs that have no proven medical value.

The inconsistency between the federal government that criminalizes marijuana and the 33 states that have legalized medical marijuana places health care providers such as nursing facilities and hospices on the horns of a dilemma. While their patients may be registered users whose physicians recommended medical marijuana in accord with state law, the mere possession of marijuana is a federal crime. Attorney General Barr has indicated that he will rely on the position of the Department of Justice (DOJ) previously announced under the Obama Administration that the DOJ will defer to law enforcement at the state level where states have robust laws and individuals and entities growing, distributing, or possessing medical marijuana comply with state law.

Back to the bill that the Judiciary Committee just passed by a 24-10 vote. The MORE Act goes beyond decriminalizing medical marijuana. It would remove marijuana and tetrahyrodcannabiniods (THC) from inclusion in any of the CSA’s schedules. THC is the psychoactive component in marijuana that produces a “high” while cannabidiol (CBD) does not trigger the psychoactive response. Notably, according to the Farm Bill of 2018, hemp which contains no more than 0.3 per cent CBD is now legal in all states. A visit to CVS, Walgreens, or Walmart illustrates how ubiquitous CBD has become since January 2019.

The bill’s amendment to the CSA removing marijuana from Schedule I status would apply retroactively to “any offense committed, case pending, or adjudication of juvenile delinquency entered before, on, or after the date of enactment.” Additionally, the bill would establish a Cannabis Justice Office headed by a Director and resides within the Office of Justice Programs. The Director would report to the Assistant Attorney General and may award grants and enter into cooperative agreements and contracts on behalf of the Cannabis Justice Office. Further, the Director of the Cannabis Justice Office would be required, under the proposed legislation, to establish a grant program known as the “Community Reinvestment Program” which would “provide eligible entities with funds to administer services for individuals most adversely impacted by the War on Drugs.” According to Chairman Nadler, “For too long we’ve treated marijuana as a criminal justice problem instead of a matter of personal choice and public health.”

Some members of the Judiciary Committee, such as Rep. Doug Collins (R-GA), ranking member on the committee, who did not vote for the bill, agree that “the federal government has completely failed in this area.” Yet, Representative Collins notes that “The MORE Act is the wrong way. There is effective legislation before this committee that is more comprehensive, much less bureaucratic, and which actually stands a chance of becoming law.” Other members who did not vote for the bill point to pending legislation such as the Strengthening the Tenth Amendment Through Entrusting States (“STATES”) Act. The STATES Act would amend the CSA by exempting individuals or entities from prosecution who are in compliance with state laws.

A key difference between the MORE Act and the STATES Act is that the latter does not contain “social justice” elements nor does it seek to retroactively apply to individuals incarcerated or indicted for marijuana-related offenses. If the MORE Act passes a floor vote in the House, it is likely that it will be refined or defeated in the Senate.

According to Dr. Cari Levy, former president of the American Medical Directors Association, the Society for Post-Acute and Long-Term Care Medicine (AMDA), “Representative Nadler’s bill has the potential to open a path to allow for much-needed research on the medical use of marijuana and cannabinoids, to build a body of evidence that is now sorely lacking. There is rapidly growing interest in the use of cannabinoids in PALTC, especially as an alternative to the use of opioids for pain management among older adults.” Dr. Levy adds, “We are encouraged that the bill may now move to a full floor vote before the end of this session of Congress.”

Whether the MORE Act is ultimately passed by Congress after the Senate weighs in is an open question. However, it seems likely we will see federal legislation that legalizes marijuana – if only medical marijuana – in the near future. Given than more than 70% of surveyed Americans favor the legalization of marijuana, in addition to the 33 states that have already legalized medical marijuana, it may be difficult to put the genie back in the bottle.

There are a number of pending bills in both the House and Senate that directly relate to marijuana. The salient point to remember is that, as of this writing, marijuana – including medical marijuana – remains illegal under federal law. If the proposed landmark legislation becomes law, it would remove the uncertainty of not knowing if an individual or healthcare provider could be prosecuted for possessing or using marijuana.

Further research into this growing field will determine the extent to which marijuana provides benefits or poses risks to individuals suffering from a variety of medical conditions. The proposed landmark legislation advances the dialogue, if not the law.

Disclaimer: This column is intended to be educational only and is not a substitute for qualified legal advice in any particular jurisdiction.