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An industry association that represents drug testing companies and a cannabis-focused biopharmaceutical corporation are asking a federal appeals court to block the Trump administration from moving forward with federal marijuana rescheduling while ongoing litigation challenging the reform is considered—claiming that cannabis is a “dangerous drug that destroys lives.”
The National Drug and Alcohol Screening Association (NDASA), along with MMJ International Holdings and its subsidiaries, argue in the new filing on Tuesday that the cannabis rescheduling move is “a brazen agency overreach in which the Acting Attorney General ignored restrictions on his authority set by Congress—and a binding decision of this Court—to carry out one of the most sweeping reductions in restrictions on a dangerous narcotic in the history of the Controlled Substances Act (CSA).”
“Nearly fifty years ago, this Court held that the Attorney General lacks authority to unilaterally decide how marijuana ought to be restricted—that is, which Schedule it should be placed under—pursuant to the CSA. The Court explained that Congress constrained the Attorney General’s authority by requiring him both to secure recommendations from the Secretary of Health and Human Services (HHS) and to make detailed findings through a formal rulemaking on the record. While the CSA contains a limited bypass of those procedures to allow the Attorney General to ensure that the U.S. complies with certain treaties…this Court made clear that the bypass cannot be invoked when the Attorney General is simply deciding to move a drug between two Schedules under the CSA, either of which would comply with treaty obligations.”
“The Department of Justice complied with this Court’s construction of the CSA for over four decades—until now,” the joint motion for a stay pending review that was filed before the U.S. Court of Appeals for the District of Columbia Circuit argues.
While HHS had issued a recommendation to reschedule marijuana during the Biden administration, the recent move by the Trump Department of Justice canceled ongoing proceedings related to that proposal and issued a new final rule.
Under an order issued by Acting Attorney General Todd Blanche in April, marijuana products regulated by a state medical cannabis license immediately moved from Schedule I of the Controlled Substances Act (CSA) to Schedule III, as did any marijuana products that are approved by the Food and Drug Administration (FDA). An administrative hearing scheduled for this month will consider broader cannabis rescheduling, including for recreational products.
“The Court should stay the Rescheduling Order pending review to avoid the devastating effects that will flow from ballooning access to marijuana while this case is pending,” the new motion from NADASA and MMJ says.
NDASA and MMJ had been part of two separate lawsuits against the government’s cannabis rescheduling move that were later consolidated along with a third challenge to the reform from a handful of state attorneys general.
Without the court putting rescheduling on hold, they will “suffer irreparable harm,” they argued in the new filing.
“Moving marijuana to Schedule III will cause many employers to stop testing for marijuana altogether and thus will cause unrecoverable losses in revenue for NDASA’s members who evaluate drug test results,” it says. “The Rescheduling Order will also inflict irremediable harm on MMJ International Holdings, Inc., MMJ BioPharma Cultivation, Inc., and MMJ BioPharma Labs, Inc.—entities that have invested more than $10 million and nearly a decade lawfully developing Schedule I cannabinoid treatments—by moving competitors’ products into Schedule III and enabling them to rapidly enter and flood the market.”
The industry association and the company conclude by arguing that “preserving for a few more months the status quo that has prevailed for over half a century will not cause irreparable harm.”
Last month, three Republican state attorneys general filed a separate lawsuit challenging federal cannabis rescheduling move before same appeals court.
The court consolidated the Indiana, Nebraska and Louisiana attorneys generals’ complaint with a separate suit that was filed earlier last month by prohibitionist organization Smart Approaches to Marijuana (SAM) and NDASA. The case that MMJ brought along with New Directions Addiction Recovery Services, Cannabis Industry Victims Educating Litigators and two individual medical doctors has also been added.
Louisiana’s attorney general, meanwhile, has withdrawn from the anti-cannabis-rescheduling suit she was initially part of bringing.
A federal judge last month dismissed separate litigation MMJ, SAM and others brought to challenge a new Trump administration initiative to cover up to $500 worth of hemp-derived products each year for eligible Medicare patients, though that is being appealed.
Meanwhile, a congressional committee recently voted to block federal officials from taking further steps to carry out cannabis rescheduling.
Read the full motion for a stay on marijuana rescheduling below:
Tom Angell is the editor of Marijuana Moment. A 25-year veteran in the cannabis and drug law reform movement, he covers the policy, politics, science and culture of marijuana, psychedelics and other substances. He previously reported for Forbes, Marijuana.com and MassRoots, and was given the Hunter S. Thompson Media Award by NORML and has been named Journalist of the Year by Americans for Safe Access. As an activist, Tom founded the nonprofit Marijuana Majority and handled media relations, campaigns and lobbying for Law Enforcement Against Prohibition and Students for Sensible Drug Policy.
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