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“He’s been so vocal, and rescinded the Cole Memo and put all these things in place himself,” he said in the interview.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.”