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MORE Act – Decriminalization or Legalization?

On December 4, 2020, Congress approved the Marijuana Opportunity Reinvestment and Expungement Act, or MORE Act, which would remove cannabis from the schedule of Controlled Substances. The bill currently awaits a vote in the Senate.

According to the bill summary, the MORE act is a bill to decriminalize cannabis. Most news and media coverage of the MORE act frames it accordingly – the bill would decriminalize cannabis on the federal level, expunge marijuana-related criminal records, and establish protections against discriminations for cannabis consumers.

While the main focus point of the MORE act has been the decriminalization of cannabis, the bill includes a number of provisions which resemble something closer to a full legalization bill than simply an act to decriminalize marijuana.

The most interesting yet under-discussed provisions of the MORE act are found in Subchapters C and D of the bill text.

Subchapter C, “Bonds and Permits,” would establish a federal permit system for cannabis operators nationwide. Such permits would be mandatory to operate within the industry. According to the text, “Except as authorized by the Secretary or on the bonded premises of a cannabis production facility duly authorized to produce cannabis products according to law, no cannabis product may planted, cultivated, harvested, grown, manufactured, produced, compounded, converted, processed, prepared, or packaged in any building or on any premises.” (SEC. 5921 (a)(1))

The bill text states that the Secretary will have the ability to establish and oversee an application process, approve or deny applications, and revoke permits.

The bill never clarifies exactly which position “Secretary” refers to in these subchapters, a textual error within the bill. It mentions three secretaries throughout the text - health and human services, transportation and treasury. It is thus unclear which secretary would be responsible for promulgating the rules and regulations of the MORE act.

Subchapter D, “Operations,” goes further in establishing what would essentially be a federally legal marketplace by affording the Secretary the powers to establish cannabis product and label requirements.

According to this subchapter, any permittee would be required to maintain records as determined by the secretary and make them available for any regular inspection.

It also sets product requirements, stating “all cannabis products shall, before removal, be put up in such packages as the Secretary shall by regulation prescribe,” and “every package of cannabis products shall, before removal, bear the marks, labels, and notices if any, that the Secretary by regulation prescribes.” (SEC. 5932 (a), SEC. 5932 (b))

The bill restricts the purchase, sale, and possession of any cannabis product which does not follow such label requirements.

These two chapters essentially law the foundation for federal legalization. Although the MORE act considers itself to be a decriminalization bill, the text aligns itself closer with a legalization bill. The imposition of a federal tax on cannabis, the establishment of a federally prescribed cannabis permit for operators, and the creation of various product and labelling requirements by federal agencies would subject all adult-use operators to federal authorities, essentially establishing a federal regulatory structure for marijuana.

Despite the bill’s success in the House, where it passed within a 228 – 164 vote, it currently lies dormant within the Senate. While the recent election in Georgia established a Democrat majority in the Senate, the MORE act’s success is still uncertain, and not every legalization supporter fully believes in the bill – activists have voiced their concerns that the bill does not enact adequate provisions for promoting social equity, for instance. Nevertheless, a full-fledged legal marketplace could be in America’s future.

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