If plaintiffs in two far-reaching lawsuits being heard in federal courts this week have their way, marijuana will no longer be classified under the U.S.’s most restrictive category, and the federal government will have to rescind a policy that treats cannabidiol as a Schedule I drug even when it is derived from legal hemp.
On Wednesday, a federal district court judge in Manhattan will hear oral arguments in a case alleging that cannabis is improperly classified under the most restrictive category of Schedule I, which is supposed to be reserved for drugs with no medical value.
Plaintiffs in the case include former NFL player Marvin Washington and a 12-year-old girl who treats epilepsy with medical cannabis.
And on Thursday, a panel of judges from the U.S. Court of Appeals for the Ninth Circuit will convene in San Francisco to hear a separate case challenging a Drug Enforcement Administration (DEA) move that advocates say oversteps the agency’s authority.
That dispute centers on a Federal Register notice DEA filed in late 2016 creating a new drug category code for marijuana extracts. The Hemp Industries Association and individual businesses are suing the government, claiming that the action puts in jeopardy farmers and researchers who are growing and processing legally grown hemp in accordance with provisions of the congressionally approved Farm Bill.
The Wednesday hearing, in the broader case about cannabis’s Schedule I status, concerns a Justice Department motion to dismiss the lawsuit.
The case’s impact “will not necessarily be immediate,” Joseph Bondy, an attorney in the case, told Marijuana Moment in an interview. No matter who wins, it will likely be appealed to the U.S. Court of Appeals for the Second Circuit.
But the Justice Department might find itself having to begin compiling documents for discovery and preparing officials for depositions in the case very soon.
Presiding Judge Alvin K. Hellerstein has a “track record of ruling very, very quickly after the argument,” Bondy said, meaning that he may officially reject the government’s motion to dismiss as soon as Wednesday.
The judge is giving the case “prioritized attention,” the New York Times reported.
While the Justice Department will almost certainly seek to prevent U.S. Attorney General Jeff Sessions from having to testify in the case, Bondy said he might have to anyway.
“He’s been so vocal, and rescinded the Cole Memo and put all these things in place himself,” he said in the interview. “He wasn’t the passive repository of the Controlled Substances Act. This is going to unfold well if we just get over this hurdle. The whole landscape has shifted and it really favors us.”
And even if the plaintiffs ultimately lose, or the case proceeds slowly, its impact will still be “powerful,” Bondy predicted, saying it will likely lead to “additional fallout” in terms of emboldening policymakers to change cannabis laws legislatively.
Several similar lawsuits challenging how the federal government treats marijuana have been unsuccessful, but advocates believe that the shifting political climate surrounding the issue puts them in a better position for a favorable ruling this time.
“We might not have been able to do this 10 or 15 years ago,” Bondy told the Times. “But the climate is very different now.”
The two federal cannabis lawsuits represent an escalation in tactics as legalization advocates continue to gain momentum.
“This is a perfect a storm of cannabis legalization support and its growing momentum,” Nelson Guerrero, co-founder of the Cannabis Cultural Association and plaintiff in case being heard on Wednesday, told Marijuana Moment in a statement. “As activists, we must use every avenue possible to move the needle forward to ultimately end cannabis prohibition – whether it’s in the courts, on the streets, or through the media.”
Marijuana Legalization Measure Advances One Step In South Dakota
South Dakota’s attorney general filed an official explanation of a proposed ballot measure to legalize marijuana on Friday.
While separate organizations are working to get a medical cannabis-focused initiative on the state’s 2020 ballot, activists behind this measure are hoping to incorporate recreational legalization, medical marijuana reform and hemp into one package.
Adult-use legalization would be accomplished through a constitutional amendment under the initiative, which would separately require the legislature to pass legislation creating rules for medical cannabis and hemp.
South Dakota Attorney General releases explanation on proposed constitutional amendment to legalize, regulate, and tax marijuana; to require passage of laws regarding hemp as well as laws regarding marijuana for medical use. Read it here: https://t.co/k33buSKjIJ pic.twitter.com/pEG0RxbDj9
— SD Attorney General (@SDAttorneyGen) August 16, 2019
“The constitutional amendment legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older. Individuals may possess or distribute one ounce or less of marijuana,” Attorney General Jason Ravnsborg (R) wrote. “Marijuana plants and marijuana produced from those plants may also be possessed under certain conditions.”
The South Dakota Department of Revenue would be responsible for issuing licenses for cannabis cultivators, manufacturers, testing facilities and retailers. Individual jurisdictions would be able to opt out of allowing such facilities in their areas.
“The Department must enact rules to implement and enforce this amendment,” the explanation states. “The amendment requires the Legislature to pass laws regarding medical use of marijuana. The amendment does not legalize hemp; it requires the Legislature to pass laws regulating the cultivation, processing, and sale of hemp.”
The initiative calls for a 15 percent excise tax on marijuana sales. That revenue would be used to fund the Department of Revenue’s implementation and regulation of the legal cannabis system, with remaining tax dollars going toward public education and the state general fund.
Ravnsborg said that judicial clarification of the amendment “may be necessary” and notes that marijuana “remains illegal under Federal law.”
The attorney general issued a similar explanation of a proposed constitutional amendment to legalize medical cannabis earlier this month.
This latest move comes one day after advocacy organization New Approach South Dakota announced that their medical marijuana initiative was certified, enabling them to begin the signature gathering process.
Several other cannabis initiatives are in the process of being certified in the state, according to the attorney general’s website. In order to place constitutional amendments on the ballot, activists must collect 33,921 valid signatures from voters.
South Dakota is one of the last remaining states in the U.S. that has not legalized marijuana for any purposes.
Photo courtesy of Brian Shamblen.
Elizabeth Warren’s Plan For Indian Tribes Includes Marijuana Legalization
Sen. Elizabeth Warren (D-MA) unveiled a plan on Friday that’s aimed at holding the federal government accountable for following through on its obligations to Native American tribes, and that includes ensuring that tribal marijuana programs are protected against federal intervention.
The plan emphasized Warren’s support for a bill she filed earlier this year that “would protect cannabis laws and policies that tribal nations adopted for themselves.”
The 2020 Democratic presidential candidate, who has faced criticism over claims of Native American heritage, pointed to federal reports showing that tribal programs generally have not received adequate funding and said it is imperative that legislation be enacted to “provide resources for housing, education, health care, self-determination, and public safety” for those communities.
To that end, Warren is planning to introduce a bill called the “Honoring Promises to Native Nations Act” alongside Rep. Deb Haaland (D-NM), co-chair of the Congressional Native American Caucus. Before filing, however, the lawmakers are soliciting input on how best to draft the legislation, and are accepting written testimony until September 30.
While the proposed legislation itself doesn’t currently include marijuana-specific provisions, a press release and blog post on the topic address the senator’s sponsorship of the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would allow tribal communities and states to set their own cannabis policies without Justice Department interference.
In order to provide economic opportunities to Native people, that “requires streamlining and removing unnecessary administrative barriers that impede economic growth on Tribal lands, respecting tribal jurisdiction over tribal businesses, and promoting forward-looking efforts to ensure full access to new and emerging economic opportunities.”
“For example, while not every tribe is interested in the economic opportunities associated with changing laws around marijuana, a number of Tribal Nations view cannabis as an important opportunity for economic development,” Warren’s campaign blog post states.
“I support full marijuana legalization, and have also introduced and worked on a bipartisan basis to advance the STATES Act, a proposal that would at a minimum safeguard the ability of states, territories, and Tribal Nations, to make their own marijuana policies,” she wrote.
.@RepDebHaaland & I invite feedback about this proposal & look forward to working closely with tribal nations & citizens, experts, & other stakeholders to advance legislation in Congress that honors the United States’ promises to Native peoples. https://t.co/qc1fkBGb3I
— Elizabeth Warren (@SenWarren) August 16, 2019
A separate press release on Warren’s Senate website also touts her support for the STATES Act, saying she “worked hard to ensure” that it included tribal protections.
“It’s beyond time to make good on America’s responsibilities to Native peoples, and that is why I’m working with Congresswoman Haaland to draft legislation that will ensure the federal government lives up to its obligations and will empower tribal governments to address the needs of their citizens,” Warren said of the overall tribal plan. “We look forward to working closely with tribal nations to advance legislation that honors the United States’ promises to Native peoples.”
In an email blast to her campaign list, Warren included “a set of additional ideas to uphold the federal government’s trust and treaty obligations with Tribal Nations and to empower Native communities,” which includes her marijuana proposal:
“New economic opportunities: We also need to respect tribal jurisdiction over tribal businesses and promote forward-looking efforts to ensure full access to new economic opportunities. For example, a number of Tribal Nations view cannabis as an important economic opportunity. I support full marijuana legalization and have advanced the STATES Act, a proposal that would safeguard the ability of Tribal Nations to make their own marijuana policies.”
There’s increased interest in ensuring that Native populations receive the same benefits and protections as states as it concerns cannabis legislation.
In June, the House passed a spending bill that included a rider stipulating that Native American marijuana programs couldn’t be infringed upon by the Justice Department. And a GOP representative filed a bill in March that would provide similar protections.
FBI Seeks Tips On Marijuana Industry Corruption
The Federal Bureau of Investigation (FBI) is actively seeking tips on public corruption related to the marijuana industry, it announced on Thursday.
“States require licenses to grow and sell the drug—opening the possibility for public officials to become susceptible to bribes in exchange for those licenses,” FBI Public Affairs Specialist Mollie Halpern said on a short podcast the bureau released. “The corruption is more prevalent in western states where the licensing is decentralized—meaning the level of corruption can span from the highest to the lowest level of public officials.”
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)