A national organization that promotes drug-free workplaces and a pharmaceutical company specializing in cannabinoids filed a motion June 9 in federal court that attempts to put the Trump administration’s immediate rescheduling of medical cannabis on hold.
The National Drug and Alcohol Screening Association (NDASA) and MMJ International Holdings, whose subsidiary holds an active DEA Schedule I analytical laboratory registration, asked the U.S. Court of Appeals for the District of Columbia Circuit to stay U.S. Acting Attorney General Todd Blanche’s April 22 signed order reclassifying state-licensed medical cannabis to Schedule III until a lawsuit seeking to vacate the entirety of the order is resolved.
The plaintiffs argue that the court should consider four factors:
- A court decision between cannabis reform advocacy group NORML and the Drug Enforcement Administration (DEA) from nearly 50 years ago;
- The rescheduling order “unlawfully” bypassed notice-and-comment rulemaking;
- The two plaintiffs will “suffer irreparable harm” absent a stay; and
- The balance of equities and public interest.
“The court should stay the rescheduling order pending review to avoid the devastating effects that will flow from ballooning access to marijuana while this case is pending,” the motion states. “The four factors this court considers all weigh in favor of a stay.”
The 25-page motion comes on the heels of lawsuits the two entities filed with the D.C. Circuit last month.
MMJ filed a petition for review on May 28 to challenge the rescheduling order alongside a substance abuse recovery clinic, two doctors and a victims’ advocacy organization, claiming Blanche’s order was unlawful and that they will “imminently suffer a concrete and particularized injury” as a result of the order.
NDASA, meanwhile, filed a similar petition for review on May 4 alongside the prohibitionist group Smart Approaches to Marijuana (SAM).
The D.C. Circuit consolidated those filings – as well as a third petition for review filed by the attorneys general from Nebraska and Indiana – into one lawsuit. The federal government, namely the Department of Justice (DOJ), has until July 2 to respond.
“This case involves a brazen agency overreach in which the acting attorney general ignored restrictions on his authority set by Congress – and a binding decision of this Court – to carry out one of the most sweeping reductions in restrictions on a dangerous narcotic in the history of the Controlled Substances Act (CSA),” according to this week’s motion from NDASA and MMJ. “Nearly 50 years ago, this court held that the attorney general lacks authority to unilaterally decide how marijuana ought to be restricted – that is, which schedule it should be placed under – pursuant to the CSA.”
The plaintiffs were referring to the 1977 D.C. Circuit decision in NORML vs. DEA, a case in which the federal court reaffirmed a statutory requirement under the CSA that the attorney general must share his or her decision-making function on rescheduling or descheduling a substance with the Secretary of the Department of Health, Education and Welfare (HEW), whose recommendations “shall be binding.” HEW was the Department of Health and Human Services’ (HHS) predecessor.
NDASA and MMJ argued this week that the 1977 decision requires the attorney general to secure recommendations from the HHS and to make detailed findings through a formal rulemaking on the record.
While the HHS determined in August 2023 – after conducting an extensive medical and scientific evaluation – 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, NDASA and MMJ argued that the 2023 finding was flawed by a two-part test, rather than a five-part test, to determine “currently accepted medical use.”
While Blanche mentioned the HHS’s 2023 recommendation in his April 2026 order, he said he was not “required to consider” it because Section 811(d)(1) of the CSA provided him “several legally viable scheduling options” to satisfy U.S. international treaty obligations under the Single Convention on Narcotic Drugs, referring to the DOJ Office of Legal Counsel’s (OLC) opinion from 2024 suggesting that he could bypass administrative procedures in certain instances.
NDASA and MMJ disagreed with Blanche’s viewpoint.
“While the CSA contains a limited bypass of those procedures to allow the attorney general to ensure that the U.S. complies with certain treaties, see 21 U.S.C. § 811(d)(1), this court made clear that the bypass cannot be invoked when the attorney general is simply deciding to move a drug between two Schedules under the CSA, either of which would comply with treaty obligations,” their motion states.
The plaintiffs further argued that they are or will be harmed by Blanche’s signed order should the court not grant their request for a stay.
NDASA said the order will impose unrecoverable costs for its members, including employers who will be forced to revise their drug-testing policies, as well as medical review officer (MRO) practices whose physicians interpret drug test results.
“Because marijuana-positive results are the largest source of MRO revenue, the order is likely to cause at least a 35% decline in revenue over the next 6-12 months,” NDASA states in the motion. “Even for employers who continue testing for marijuana, MROs will face higher costs to assess whether positive results reflect state-licensed medical use, and this combination of reduced revenue and increased costs will likely force some smaller practices out of business.”
MMJ, meanwhile, said it invested $10 million and eight years of research and development to create cannabinoid-based drugs along the pathway to FDA approval and DEA registration.
The company said Blanche’s order threatens the loss of market opportunities that it spent years creating.
“Once physicians, patients and distributors adopt competing cannabis-based products, those relationships and market positions will be permanently altered,” MMJ states in the motion. “The order also undermines the value of MMJ’s regulatory investments and competitive advantages derived from years of compliance with the prior legal regime. The erosion of first-mover advantages, exclusivity opportunities, goodwill and reputation as a pioneer in cannabinoid therapeutics is a competitive injury that cannot readily be measured or restored.”
Finally, the plaintiffs argued that keeping state-licensed medical cannabis listed as a Schedule I drug until the underlying lawsuit unfolds favors the public interest because, should the D.C. Circuit vacate the order in its entirety a few months later, it’ll be difficult to put the toothpaste back in the tube.
“The hard fact underlying this case is that marijuana and marijuana addiction destroys lives,” the motion states, with the plaintiffs suggesting cannabis use harms adolescents and children who were exposed to it in utero.
“The order flouts this court’s binding construction of the CSA, and, by eliminating the federal criminal prohibition on the use of so-called ‘medical marijuana,’ will vastly increase access to marijuana,” the motion states.
The plaintiffs argued that the federal government did not show a need for an expedited rule that bypassed public comment, a hearing process and findings on the record, but rather a “fiat” from the acting attorney general.
According to the motion, preserving a Schedule I listing for a few more months after a half century of prohibition won’t cause anyone else irreparable harm.
