Marijuana Companies Want Court Hearing In Case Challenging Federal Prohibition To Be Streamed Online Next Week

Major marijuana companies are asking a federal court to grant remote public access to a hearing next week in a case where they’re seeking to shield in-state cannabis activity from federal enforcement. And the Justice Department says it has “no position” on the request.

The hearing before the U.S. District Court for the District of Massachusetts’s Western Division is scheduled to take place on Wednesday. Attorneys for the plaintiffs stressed in a motion filed on Friday that the “dispute involves questions of public concern,” and they’ve “received a number of requests from members of the press who are seeking means to observe the hearing remotely because they are unable to attend the hearing.”

“Permitting the hearing to be accessed remotely will not prejudice the parties in any manner,” they said, adding that allowing access via video conference or telephone would work. “Plaintiffs’ counsel conferred with Defendant’s counsel, who confirmed that Defendant takes no position on this motion.”

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.

The cannabis 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.

When plaintiffs made their request for oral arguments last month that was accepted by Obama-appointee Judge Mark G. Mastroianni, DOJ similarly took no position.

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 last 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 filing of the latest motion comes just one day after the President Joe Biden announced that his administration is formally moving to reschedule marijuana, with a proposal set to be published in the Federal Register next Tuesday to place cannabis in Schedule III of the Controlled Substances Act (CSA).

Attorney General Merrick Garland, a chief defendant in the marijuana industry litigation, signed off on the proposed rule on Thursday. But reclassifying cannabis as Schedule III would not federally legalize it, so it seems unlikely that rulemaking will influence DOJ’s position in the federal court case at hand.

Read the motion on press access to the hearing on marijuana prohibition below: 

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Photo elements courtesy of rawpixel and Philip Steffan.