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Marijuana Industry Lawsuit Has ‘Zero Chance’ Of Being Heard By Supreme Court, Former DOJ Lawyer Says (Op-Ed)

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“The odds are always against the Supreme Court hearing any particular case, but the cannabis industry’s approach in this one absolutely ensures it won’t happen.”

By James B. Mann, former U.S. Department of Justice Tax Division deputy assistant attorney general

A much-hyped lawsuit meant to challenge federal cannabis law has officially flamed out. The First Circuit Court of Appeals recently issued a unanimous opinion rejecting Canna Provisions v. Garland (also known as Canna Provisions v. Bondi), a case widely seen as the cannabis industry’s best shot at attacking federal prohibition through the courts.

The case was intended to strike down cannabis’s Schedule I classification under the Controlled Substances Act and eliminate the crushing tax burden imposed by Section 280E of the Internal Revenue Code. Instead, it ended in a resounding defeat—with precisely zero chance of being heard by the Supreme Court.

Section 280E is one of the most punishing burdens facing the legal cannabis industry. Originally enacted in the 1980s to prevent drug traffickers from deducting business expenses, 280E blocks cannabis operators—even fully legal ones under state law—from writing off ordinary costs like rent, payroll or equipment. The result is that cannabis businesses often pay two to three times more in federal income tax than they would if they sold any other legal product.

The cannabis industry’s battle against 280E is now being waged across all three branches of government. Congress is being lobbied for legislative relief. The executive branch is being pressured to reschedule cannabis so 280E no longer applies. And the judiciary has been pulled in through legal challenges like Canna Provisions.

The lawsuit was filed with much fanfare in October 2023—it was funded by many of the large cannabis companies and used a big-name law firm, Boies Schiller. The goal was to overturn a 2005 Supreme Court decision, Gonzales v. Raich. In Raich, the Court upheld the Controlled Substances Act as applied to cannabis grown solely for personal medical use within one state.

Boies Schiller essentially made two arguments—first, that the realities of the cannabis market had changed so much since 2005 that Raich was outdated and wrong, and second, that Congress had passed legislation proving cannabis no longer belongs in Schedule I. The First Circuit wasn’t having any of it. The 3-0 opinion pointed out that even though the facts had changed, they had not changed enough to make Congress’s classification irrational as part of a comprehensive regime of drug regulation (the relevant test).

The court also dismissed the claim that federal legislation proved cannabis should be removed from Schedule I. The opinion noted that the funding restrictions were limited in their effect and applied only to medical cannabis (Canna Provisions and the other plaintiffs are adult-use sellers).

Interestingly, the opinion repeatedly criticizes the lack of logical development of Canna Provisions’s arguments, going so far as to dismiss one of the most important arguments for “lack of development.”

Supreme Court justices vote on what cases to hear, and it takes four votes to put a matter on the docket. In a lawsuit like Canna Provisions, there is no split among the circuit courts for the Supreme Court to resolve. That means the only real path to a hearing was to convince the justices that the case presented an urgent federal legal question.

There is one justice still on the bench from Raich—Justice Clarence Thomas. His dissent in that case, and his opinions in other Commerce Clause cases, emphasize his belief that federal power has stretched far beyond the Framers’ intent. Justice Sandra Day O’Connor’s dissent also argued that the federal law intruded on core state powers.

Bizarrely, Boies Schiller never raised the arguments made by either Thomas or O’Connor. It’s unclear who they thought would vote to hear the case based on the strategy they pursued.

And while oral argument isn’t usually a decisive factor in appellate decisions, it didn’t help that David Boies was completely shredded by the three-judge panel. (The First Circuit has publicly available recordings of oral arguments.) Boies was once one of the most prominent litigators of his generation—there’s even a chapter in a Malcolm Gladwell book about his mind and how he overcame dyslexia. But at 84, he was unprepared for basic questions and clearly no longer at his peak.

The odds are always against the Supreme Court hearing any particular case, but the cannabis industry’s approach in this one absolutely ensures it won’t happen. More broadly, Canna Provisions underscores the complexity of using litigation to advance federal cannabis reform. While carefully crafted legal challenges may still have a role, this case failed to present the type of arguments or posture that could realistically have drawn the Supreme Court’s interest.

James B. Mann is a tax attorney whose practice centers on cannabis taxation and complex business tax planning. A Harvard Law and Columbia MBA graduate, he previously served as deputy assistant attorney general in the U.S. Department of Justice’s Tax Division, led tax-debt advisory at Société Générale, and represented major cannabis clients—including arguing the Harborside case in the Ninth Circuit.

Matt Gaetz Pictured Reviewing Contract To Provide Top Marijuana Company With ‘Administration-Related’ Support Amid Rescheduling Push

Photo elements courtesy of rawpixel and Philip Steffan.

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Advocacy Organizations Call on Meta to End Censorship of Cannabis and Psychedelic Communities

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In a letter to Meta Platforms, Inc., the parent company of Facebook and Instagram, a group of cannabis and psychedelic advocacy organizations, led by Students for Sensible Drug Policy (SSDP), called on the company to end what it describes as “ongoing and disproportionate censorship of content related to cannabis, psychedelics, and harm reduction.”

“Accounts committed to public education, legal and policy advocacy, research dissemination, and harm reduction services — including those of licensed healthcare professionals, nonprofits, and legal businesses — have been routinely shadowbanned, deplatformed, or had their posts removed with little explanation or recourse, despite operating in full compliance with local laws. This suppression is not merely an inconvenience; it is a form of digital marginalization.” — SSDP, in the letter

The groups argue the censorship of cannabis and psychedelics continue amid accelerating overdose deaths and mental health crises, and call on Meta to “end discriminatory bans and shadowbans,” “establish clear, transparent, and consistent content policies that distinguish between promotion of the sale of illegal substances and legitimate drug education and advocacy,” “create a dedicated appeals and accountability process specific to drug-related content that includes community stakeholders and subject-matter experts,” and “engage in regular dialogue with the psychedelic, cannabis, and harm reduction communities to better understand our work and co-create equitable guidelines for content moderation.”

In all, 81 organizations, consisting of students, educators, researchers, advocates, entrepreneurs, and community leaders, joined the letter, calling Meta’s policy “censorship of science, public health, legal, and public policy discourse” and describing the policy as “not an act of neutrality.”

“As the cultural and legal landscapes around these issues evolve,” the letter states, “so too must your policies.”



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Florida Removes Nearly 11,000 Hemp Product Packages for Violating Child-Protection Standards

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Florida officials have removed nearly 11,000 packages of hemp products for violating child-protection standards for packaging, labeling, and marketing throughout the state during the Florida Department of Agriculture’s “Operation Safe Summer.”

In a statement, Commissioner of Agriculture Wilton Simpson said the agency has “drawn a hard line in Florida when it comes to protecting our children from dangerous and deceptive hemp products.”

“’Operation Safe Summer’ is our latest effort to crack down on bad actors who think they can skirt the law, ignore public safety, and profit off high-potency, intoxicating hemp products that endanger our children. We will not tire in our commitment to cleaning up this industry, holding violators accountable, and sending a clear message: if you refuse to follow the law, you won’t be doing business in Florida.” — Simpson in a press release

The agency in April and June advised businesses in April and June about the planned enforcement of new Agriculture Department rules around intoxicating hemp-infused products. The new rules, enacted in 2023, include:

Prohibition on specified color additives.

Mandatory child-resistant packaging in accordance with ASTM International D 3475-20, Standard Classification of Child Resistant Packages.

Certificates of analysis must now include laboratory information, the concentration of total delta-9 THC, and confirm the presence or absence of prohibited substances and pathogens.

Restrictions on marketing and advertising of hemp and hemp extract intended for human consumption.

Enhanced labeling requirements, including the use of common household measurements for serving sizes and the provision of a scannable barcode or QR code, must link to the certificate of analysis within three or fewer steps.

Water activity for cannabis flower or leaves must be 0.60 (±0.05).

Since July 2023, the Agriculture Department has uncovered more than 738,000 packages of hemp products in violation of child-protection standards.



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Nebraska Officials Propose Emergency Medical Cannabis Regulations

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The Nebraska Medical Cannabis Commission last week approved emergency regulations to begin accepting medical cannabis applications as soon as Gov. Jim Pillen (R) allows the agency to proceed, the Nebraska Examiner reports. Under the state’s voter-approved medical cannabis law, the commission must start accepting applications by July 1.

The regulations largely mirror a legislative proposal that failed in the legislature last month and would remain in effect for 90 days after being approved by the governor.

Under the medical cannabis law, medical cannabis licensing must begin by October 1, and the emergency regulations would allow for the licensing of cultivators, product manufacturers, dispensaries, and transporters, with individuals or organizations only permitted one type of license.

Under the emergency regulations, only one dispensary would be allowed in each of the state’s 12 District Court Judicial Districts; no dispensary could be located within 1,000 feet of any school, daycare, church or hospital; at least 51% of an applicant’s business or organization must have resided in Nebraska and be a U.S. citizen for at least the past four years; and applicants would have to pay to submit two legible sets of fingerprints to the FBI and the Nebraska State Patrol for a criminal background check.

The regulations do not specify qualifying conditions for medical cannabis access but require that a physician’s recommendation specifies the product being recommended, the recommended dosage and potency, the number of doses, the directions for use, and the name of the patient.

The regulations allow dispensaries to sell oral tablets, capsules, or tinctures; non-sugarcoated gelatinous cubes, gelatinous rectangular cuboids, or lozenges in a cube or rectangular cuboid shape; topical preparations; suppositories; transdermal patches; and liquids or oils for administration using a nebulizer or inhaler. Flower is not permitted under the regulations, neither are infused food or drinks, any products containing artificial or natural flavoring or coloring, or any products that can be smoked or vaped.



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