Pot Cos. Ask 1st Circ. To Revive Bid To Upend Federal Ban

A string of accommodations by Congress for the use and sale of marijuana have eroded the factual and legal rationale for the drug’s ongoing prohibition under federal law, a group of cannabis companies told the First Circuit.

The group, led by litigator David Boies of Boies Schiller Flexner LLP, on Tuesday filed an opening brief asking the appeals court to revive its constitutional challenge to the drug’s ban under the federal Controlled Substances Act because the factual ground has shifted under a critical 19-year-old U.S. Supreme Court precedent.

The plaintiffs — retailer Canna Provisions Inc., cultivator Wiseacre Farm Inc., marijuana entrepreneur Gyasi Sellers and multistate cannabis operator Verano Holdings — said a Massachusetts federal judge was wrong to dismiss their challenge based on the high court’s 2005 decision in Gonzales v. Raich.

In that opinion, the justices upheld the Controlled Substances Act’s prohibition of marijuana even where the drug is legal and regulated because the ban was necessary to carry out the government’s stated goal of eradicating all cannabis in interstate commerce.

But in the two decades since Raich, the federal government has abandoned that goal, taking steps to dismantle what was once a “comprehensive scheme” to rid the country of marijuana, the plaintiffs told the First Circuit.

In 2010, Congress permitted Washington, D.C., to run a medical marijuana program. Four years later, federal lawmakers passed the Rohrabacher-Farr Amendment barring the U.S. Department of Justice from enforcing the Controlled Substances Act against people participating in such state-regulated medical cannabis programs. 

The cannabis plaintiffs also pointed to the 2011 memo issued by then-Deputy Attorney General James Cole, who explained then that the DOJ wasn’t making a priority of prosecuting people who complied with state-regulated marijuana programs.

“Instead of seeking to control all intrastate marijuana, Congress contemplates an ongoing ‘interstate market in medical marijuana,’ and seeks to ‘to free the market in medical marijuana from being subject to the full degree of federal criminal enforcement,’” the plaintiffs said in the brief.

The arguments also rely on the First Circuit’s 2022 decision in Ne. Patients Grp. v. United Cannabis Patients & Caregivers of Maine, in which the court said the Controlled Substances Act of 1970 “was not Congress’s last word on the market in marijuana.”

In that decision, the First Circuit found that lawmakers’ continued passage of the Rohrabacher-Farr Amendment “reflects an effort by Congress to free the market in medical marijuana from being subject to the full degree of federal criminal enforcement to which that market otherwise would be subject.”

The Northeast Patients Group decision, the plaintiffs said, “shows that Congress is no longer operating under the goal of eliminating, or even controlling, all interstate marijuana.”

If the government has, in fact, abandoned that goal, then the constitutional argument for allowing the federal government to control the purely intrastate cannabis market falls apart, the marijuana companies said.

The lawsuit filed by Canna Provisions and the others was dismissed in July after a Massachusetts federal judge said his role was limited to only looking at whether the companies affected interstate commerce, and it found they did.

The companies’ attorney, Joshua I. Schiller of Boies Schiller Flexner LLP, said in a statement Wednesday that Congress no longer had the “authority to continue criminalizing the medical and adult-use marijuana that is today relied on by people in 38 states across the country.”

Schiller said that the appeal should be fully briefed well ahead of when the DOJ is expected to start hearings on rescheduling the drug.

A spokeswoman for the Justice Department declined to comment when reached Wednesday.

The plaintiffs are represented by David Boies, Jonathan D. Schiller, Matthew L. Schwartz, David P.G. Barillari and Joshua I. Schiller of Boies Schiller Flexner LLP.

The government is represented by Daniel Aguilar and Sarah Carrol of the U.S. Department of Justice’s Civil Division.

The case is Canna Provisions Inc. et al. v. Garland, case number 24-1628, in the U.S. Court of Appeals for the First Circuit.

—Editing by Orlando Lorenzo and Vaqas Asghar.

Correction: A previous version of this article misstated the year that Gonzales v. Raich was decided.