Attorneys reflect on marijuana bill passed in House of Representatives

The U.S. House of Representatives recently passed a bill that would remove marijuana from the list of federally controlled substances and eliminate criminal penalties for a person who makes, distributes or possesses the plant.

If passed into law, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act would reflect the second time in recent years that Congress took steps to reverse longstanding policies restricting the use of the cannabis plant. Congress in 2018 removed hemp and its derivatives from the Controlled Substances Act (CSA).

“The MORE Act effectively eliminates that distinction” between hemp and marijuana, said Bob Hoban, a cannabis attorney in Denver who founded Hoban Law Group, during a Dec. 14 webinar hosted by the Natural Products Association (NPA). “It not just treats cannabis or marijuana differently but it looks to deschedule the plant, remove it from the schedules, which is a pretty significant step.”

The fate of the legislation is tied, in part, to whether Republicans maintain control of the Senate.

Following the Nov. 3 election, Republicans secured 50 seats in the Senate to the Democrats’ 48. Since no candidate in either of Georgia’s Senate races won a majority vote, the top two candidates in each race are facing off in Jan. 5 runoff elections.

The MORE Act is not expected to advance through Congress if the GOP retains control of the Senate. While Sen. Majority Leader Mitch McConnell (R-Ky.) has been a fervent advocate of hemp, he doesn’t feel the same way about marijuana.

“[T]he House of Representatives is spending this week on pressing issues like marijuana. You know, serious and important legislation befitting this national crisis,” McConnell said on the Senate floor, according to a Dec. 5 article from CNBC.

McConnell controls the agenda on the floor of the Senate, observed Mac Haddow, a partner at Upstream Consulting, a government relations firm.

“If he personally chooses not to allow for the MORE Act to even be brought up, it will not be brought up,” Haddow said during the NPA webinar. “It would take an enormous amount of pressure from his colleagues—and currently we don’t have that critical mass within the Republican caucus—to push the majority leader to do something like that.”

Hoban suggested the MORE Act—if it was signed into law—would challenge FDA to regulate cannabis-derived substances with higher concentrations of THC. Currently, federally legal hemp cannot contain THC exceeding 0.3% on a dry weight basis.

FDA has been considering how to regulate the market for hemp-based CBD, while many states across the U.S. have already adopted laws and rules related to the labeling, registration and testing of CBD products.

That has created an unsustainable situation, according to Kevin Bell, a partner with the law firm Arnall Golden Gregory LLP (AGG) and outside counsel to NPA.

“You can’t live in a world where we have 50-plus entities out there thinking different ways and then the federal government saying, ‘We’ll get back to you,’” Bell said during the NPA webinar.

He said he recently talked to a consultant who noted large businesses aren’t entering the CBD market until FDA acts.

“That’s not good for several reasons,” the lawyer reflected. “One, for their own financial stability. Two, job creation. Three, large companies potentially have the power to move the needle on not just the legitimacy of these issues but the quality of products that could be launched, distribution channels [and] supply chain mechanisms.”

In the absence of federal regulation of hemp-based CBD, “hundreds if not thousands of smaller players” have entered the space, observed Hoban. Passage of the MORE Act, he suggested, would signal to such entities as “institutional parties” and “Fortune 500 companies” that they can operate in the cannabis market “without reservation because it has been removed from the criminal ranks and the Controlled Substances Act at the federal level.

“If that were to occur, then we’d see a major shakeup of the existing cannabinoid extract marketplace,” Hoban predicted, “because those smaller players would in all likelihood be replaced by larger players who control shelf space already and distribution outlets.”