Judge Schedules Oral Arguments In Marijuana Companies’ Lawsuit Challenging Federal Prohibition

A federal judge on Thursday agreed to schedule oral arguments in a case from major U.S. marijuana companies that are seeking to shield in-state cannabis activity from federal enforcement. The businesses have said in their lawsuit against the federal government that the prohibition of marijuana has “no rational basis,” pointing to officials’ largely hands-off approach to the recent groundswell of state-level legalization.

The new order, from the U.S. District Court for the District of Massachusetts’s Western Division, comes following the companies’ request for oral argument earlier this month.

The in-court arguments will be held on May 22 at 10:30 a.m.

“The case presents multiple constitutional questions and concerns matters of great importance both in the Commonwealth and nationwide,” the cannabis companies said in their request for the court to schedule the meeting. “Oral argument will allow for a meaningful review of these issues.”

The suit against the federal government—Canna Provisions v. Garland—is being led by multi-state operator Verano Holdings Corp. and the Massachusetts-based cannabis businesses Canna Provisions and Wiseacre Farm, along with Treevit CEO Gyasi Sellers. Plaintiffs are represented by the law firms Boies Schiller and Flexner LLP and Lesser, Newman, Aleo and Nasser LLP.

Litigator David Boies—whose list of prior clients includes the Justice Department, former Vice President Al Gore and plaintiffs in the case that led to the invalidation of California’s ban on same-sex marriage—is leading the suit.

Boies said in a letter this month to Judge Mark G. Mastroianni, an Obama appointee, that oral arguments “would be particularly useful for addressing points raised for the first time in Defendant’s reply brief, including whether the Controlled Substances Act’s (CSA) bar on intrastate marijuana can be upheld as an attempt to regulate ‘”marijuana tourism.’”

An earlier statement from the Department of Justice (DOJ) said the government “takes no position on the request for oral argument.”

At issue in the case is the degree to which in-state cannabis activity affects interstate commerce, with the government arguing that cannabis legalization attracts out-of-state tourists.

DOJ argued in a filing earlier this month that “it is rational to conclude that the regulated marijuana industry in Massachusetts fuels a different kind of marijuana-related interstate commerce: marijuana tourism.”

“As the Supreme Court held decades ago, Congress has the authority to regulate businesses that cater to tourists from out of state, even if the businesses’ transactions occur wholly in-state,” DOJ said in the brief.

Plaintiffs, meanwhile, contend the Constitution’s Commerce Clause should preclude DOJ from interfering in state-legal activity because it is regulated within a state’s borders.

The case is unfolding against the backdrop of a Drug Enforcement Administration (DEA) review into marijuana scheduling under the CSA. The U.S. Department of Health and Human Services (HHS) has recommended moving cannabis from Schedule I to Schedule III.

And while the Biden administration has maintained that people should not be criminalized over possession or use of marijuana, DOJ has continued to fight reform efforts in courts, including this current case on broad prohibition, as well as litigation challenging the ban on cannabis consumers’ gun rights.

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