Marijuana Moment: DOJ Marijuana Lawsuit Filing Cites Drug Testing Industry And Pharma Company ‘Pocketbook Interests’ In Opposing Rescheduling

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The Department of Justice is urging a federal court to reject marijuana opponents’ request to pause the Trump administration’s cannabis rescheduling proposal from moving forward amid overall litigation challenging the reform.

The government brief argues that the drug testing industry association and pharmaceutical company seeking to block rescheduling have  “pocketbook interests served by keeping all marijuana in schedule I.”

The U.S. Court of Appeals for the District of Columbia is currently weighing three separate lawsuits against moving cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III that have since been consolidated.

One suit is led by prohibitionist organization Smart Approaches to Marijuana (SAM) and the National Drug and Alcohol Screening Association (NDASA), who claim they are “aggrieved” by the reform. Another comes from a coalition of anti-marijuana activists, substance misuse professionals, doctors and a cannabis-focused biopharmaceutical corporation. A third challenge was filed by the attorneys general of Indiana, Nebraska and Louisiana—though the later state later withdrew from the suit.

Two of the entities involved in the litigation—NDASA and cannabis-focused biopharmaceutical corporation MMJ International Holdings—filed a separate motion asking the court to place a stay on rescheduling while the broader challenge is considered.

DOJ on Thursday issued a response to that request, arguing that the court should not pause cannabis reform because, it says, NDASA and MMJ do not have standing to bring the challenge and have “not demonstrated a likelihood of success” of the overall litigation.

“Petitioners come nowhere near satisfying the demanding standard for that extraordinary relief.”

The government brief says that NDASA, which represents drug testing companies, has only cited “generalized speculation about how the rescheduling order might affect the drug-testing industry rather than particularized allegations about how the order has affected specific members of the association.”

The group argued that under rescheduling its members will face lost revenue from fewer employers drug testing for marijuana and “higher costs” required to determine “whether positive results reflect state-licensed medical use.”

But DOJ says that isn’t the government’s problem.

“Moreover, the future injuries that NDASA fears would be caused either by the decisions of clients to stop testing for marijuana entirely, or the joint decision of its members and their clients for the drug screener to bear the increased costs of testing. Petitioners have not shown that it is ‘predictable,’ rather than merely ‘speculative,’ that third-party employer-clients will choose to stop testing for illegal marijuana use. And any increased costs to drug screeners from their clients’ continued testing would be traceable to their voluntary billing decisions, not the rescheduling order.”

Similarly, the government brief says that MMJ also has not established standing to pursue its petition for review, noting that it is “not a current market competitor” and has two Investigational New Drug applications pending with the Food and Drug Administration (FDA) without having any products that have completed the clinical trial process.

“Petitioners fail to establish Article III standing—the association fails to identify concrete harm to any of its individual members, and the pharmaceutical company fails to demonstrate competitor standing when it has not yet produced an authorized product to compete in the marketplace. Nor do petitioners’ asserted injuries fall within the CSA’s zone of interests. Congress enacted the CSA to ensure the proper regulation of substances for research and medical use—it did not enact the CSA to provide drug screeners with a permanent source of income for testing marijuana, nor did it enact the law to protect ‘market opportunities’ for the creation of ‘cannabinoid-based drugs.'”

The DOJ filing argues that the drug testing group and pharmaceutical company are not “suitable challengers” to the marijuana rescheduling move.

“The intended beneficiaries of the CSA are thus the American public and scientists and medical practitioners seeking legitimate access to controlled substances for research and patient treatment. Petitioners are not the intended beneficiaries of the CSA, nor do their interests systemically align with those beneficiaries. Petitioners invoke the interests of (1) drug screeners in avoiding loss of business and increased costs; (2) employers in avoiding the costs of revising drug-testing protocols; and (3) a pharmaceutical company (MMJ) in preventing market competition. Petitioners thus invoke pocketbook interests served by keeping all marijuana in schedule I.”

Earlier this week, two medical marijuana companies filed a motion to intervene in the rescheduling lawsuit by joining the side of the government and opposing the litigation from prohibitionists.

The developments in the litigation come as DEA this week began an administrative hearing on the marijuana rescheduling proposal in which government witnesses and lawyers are highlighting the medical uses and relative safety of cannabis while opponents are challenging the process by which officials developed the recommendation for the reform.

Under an action announced by Acting Attorney General Todd Blanche in April, marijuana products regulated by a state medical cannabis license immediately moved from Schedule I of the Controlled Substances Act (CSA) to Schedule III, as did any marijuana products that are approved by the Food and Drug Administration (FDA). The ongoing hearing is considering broader cannabis rescheduling, including for recreational products.

The suit from SAM and NDASA challenging rescheduling was signed by attorneys at Torridon Law PLCC, where former U.S. Attorney General William Barr, led DOJ during Trump’s first term in office, is a partner.

SAM had announced in January that it was hiring Barr’s firm to legally combat cannabis rescheduling after Tump signed an executive order directing officials to complete the process expeditiously.

Meanwhile, the House Appropriations Committee voted to block federal officials from taking further steps to carry out cannabis rescheduling. Bipartisan lawmakers told Marijuana Moment, however, that they don’t expect the legislative effort to block rescheduling to succeed.

Separately, SAM, MMJ and other plaintiffs filed a lawsuit seeking to block a Trump administration program to cover certain hemp-derived products through Medicare. That case was dismissed by a federal judge in May, but that decision is being appealed.

Read DOJ’s full brief in the marijuana rescheduling lawsuit below:

The post DOJ Marijuana Lawsuit Filing Cites Drug Testing Industry And Pharma Company ‘Pocketbook Interests’ In Opposing Rescheduling appeared first on Marijuana Moment.

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