UPDATE: Louisiana Attorney General Liz Murrill asked the D.C. Circuit on May 29 to dismiss Louisiana as a petitioner in the proceedings, leaving only Nebraska and Indiana. Also, five other anti-rescheduling parties filed a separate petition to block the Schedule III order on May 28. That story is here.
A pair of medical-only cannabis states and one prohibition state are joining the fight to reverse President Donald Trump’s administration’s immediate reclassification of medical cannabis to Schedule III.
On May 22, Nebraska, Indiana and Louisiana filed a 15-page petition for review in the U.S. Court of Appeals for the District of Columbia Circuit, naming U.S. Acting Attorney General Todd Blanche and Drug Enforcement Administration (DEA) Administrator Terrance Cole as respondents.
The petition, filed by state attorneys general Todd Rokita (Indiana), Mike Hilgers (Nebraska) and Liz Murrill (Louisiana), asks the D.C. Circuit to review Blanche’s April 22 signed order that loosen restrictions on state-licensed medical cannabis under the Controlled Substances Act (CSA) and the DEA’s subsequent “final rule” published April 28 in the Federal Register, suggesting those actions violate the Administrative Procedures Act (APA).
“Petitioners will show that this agency action fails to comport with the requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551 to 559, because it was improperly promulgated and was otherwise procedurally improper, that it exceeds or is inconsistent with pertinent authority, including the Controlled Substances Act, 21 U.S.C. § 801 et seq. and the Single Convention on Narcotic Drugs, 18 U.S.T. 1407 (Ratified 1967), and, ultimately, that this agency action is arbitrary, capricious, an abuse of discretion, and not in accordance with law,” the three state’s chief legal officers wrote in the petition. “Petitioners thus ask that this court declare unlawful and vacate this final agency action.”
This petition for review – a precursor to the actual bones of legal arguments that are yet to be filed in future briefs – follows a similar petition that the prohibitionist group Smart Approaches to Marijuana (SAM) and the National Drug and Alcohol Screening Association (NDASA) filed on May 4 in the D.C. Circuit.
On May 27, the D.C. Circuit consolidated the states’ challenge with SAM and NDASA’s challenge and set a June 26 deadline for the states to file their brief. SAM and NDASA have until June 4 to file theirs.
"We welcome these legal challenges brought by the attorneys general, who are taking bold action to stop this illicit order," SAM CEO Kevin Sabet said Wednesday. "Our coalition is growing as leaders around the country recognize that this unprecedented order will cause significant harm to public health and safety. We won't rest until this dangerous action is reversed."
In Blanche’s signed order, the acting attorney general acted to immediately reclassify state-licensed medical cannabis and FDA-approved products containing cannabis or cannabis extracts “under his authority to reschedule drugs to carry out the United States’ obligations under the Single Convention on Narcotic Drugs,” an international drug treaty.
The Trump Department of Justice (DOJ) applied this treaty pathway to immediately reschedule medical cannabis after the U.S. Department of Health and Human Services (HHS) conducted a months-long medical and scientific evaluation and determined in August 2023 that cannabis does have “currently accepted medical use” in the U.S., and that its potential for abuse is less than substances listed in Schedules I and II of the CSA.
Blanche drew attention to this President Joe Biden-era HHS finding, but he did not intentionally lean on it when issuing the immediate rescheduling order for medical cannabis. Simultaneously, he set aside the reclassification of adult-use cannabis to go through the traditional APA process, including an upcoming administrative law judge hearing scheduled to commence on June 29.
“Although I am not required to consider this HHS recommendation when issuing an order under section 811(d)(1), because I believe there are several legally viable scheduling options that would satisfy the United States’ obligations under the Single Convention based on OLC's 2024 opinion discussed above, I exercise my discretion in determining the most appropriate schedule by choosing the option that most closely aligns to HHS’s findings and best positions the United States to carry out its obligations under the Single Convention with regard to marijuana crops and other marijuana that has not yet been manufactured into an FDA-approved product or subject to a state medical marijuana license,” Blanche’s April 22 order states. “Namely, I am hereby ordering that FDA-approved drug products containing marijuana, as well [as] marijuana in any form covered by a state medical marijuana license, be placed in Schedule III of the CSA.”
The DOJ Office of Legal Counsel (OLC) opinion he was referring to determined that “if marijuana is listed in Schedule III, most of the Single Convention’s obligations noted above will continue to be met by CSA statutory authorities and associated regulations” and “the controls available under Schedule III are also sufficient to comply with the requirements of the Convention on Psychotropic Substances with respect to Δ9-THC.”
Nebraska, Indiana and Louisiana, as well as SAM and NDASA, will likely argue in their upcoming briefs that this OLC opinion was flawed and that Blanche’s rescheduling actions must comply with APA procedures.
