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DEA judge cancels upcoming cannabis rescheduling hearings

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The cannabis rescheduling saga hit a new snag, with a chance the policy change could be nixed altogether.

A Drug Enforcement Administration judge on Monday canceled marijuana rescheduling hearings set to begin next week and put the process on hold for at least three months, giving pro-rescheduling groups time to challenge earlier rulings directly with the DEA’s administrator.

Chief Administrative Law Judge John J. Mulrooney II issued a strongly worded order that will let cannabis industry groups appeal his ruling that kept DEA in charge of the proceedings, though he rejected their request to remove the agency entirely.

“The specter of officials at the highest level of Agency management selectively assisting and granting access to individuals and groups standing in opposition to the [Notice of Proposed Rulemaking] it purportedly supports as the proponent, carries no small measure of discomfiture,” Mulrooney wrote in his 6-page decision.

While Mulrooney said he couldn’t remove DEA from its role, he warned he could take other serious steps, including stopping the entire process and recommending it start over from scratch with new rules.

“Even factoring in the reality that sometimes litigants and their representatives should be mindful of what they wish for, to the extent my analysis is found to be in error on review, I am willing to certify that the allowance of this interlocutory appeal could potentially avoid exceptional delay, expense or prejudice,” Mulrooney wrote.

The judge described DEA’s actions as showing “a puzzling and grotesque lack of understanding and poor judgment” for a major federal agency, but said such issues wouldn’t ultimately compromise the final decision.

A cohort of cannabis companies and advocates, including Village Farms International and Hemp for Victory, tried to disqualify the DEA from participating in rescheduling hearings by pointing to several examples of alleged bias. They said DEA Deputy Assistant Administrator Matthew Strait gave special help to the Tennessee Bureau of Investigation with its application to participate – help that wasn’t offered to others, including Colorado state officials.

Questions also arose about how the DEA picked who could participate in the hearings, with documents showing the agency received 123 requests from 163 organizations but only selected 25 participants. The companies uncovered that the DEA had an undisclosed partnership with one of the chosen hearing participants, the Community Anti-Drug Coalitions of America, on fentanyl-related programs.

The cannabis companies first raised concerns in November when Kevin Sabet, CEO of anti-legalization group Smart Approaches to Marijuana, claimed he had “two confidential sources inside the DEA” who knew about the agency’s opposition to rescheduling. A federal judge recently dismissed a separate lawsuit seeking to force the DEA to reveal these alleged communications.

But the DEA defended itself Monday, saying that “marijuana is presently a Schedule I controlled substance and DEA continues to treat it as such.”

The agency argued that its job to enforce drug laws doesn’t prevent it from fairly considering changes to marijuana’s status.

The judge noted a paradox in the DEA’s approach. Had the agency “elected at the outset to narrow the scope of participants within the strict parameters of the regulations… without any of the unpalatable noise associated with the alleged ex parte communications,” its decisions would likely have been upheld, according to the order.

Mulrooney also criticized the DEA’s failure to acknowledge “in any way the gravity” of high-level officials allegedly helping potential participants strengthen their applications.

The appeal itself adds complexity to the timeline. Under DEA regulations, the process now returns to agency leadership, who will control all aspects including briefing schedules and potential oral arguments.

Additionally, President-elect Donald Trump will take office next week, which Mulrooney noted in his order, means that “the appointment of a new DEA Administrator by a different political party is imminent.”

In a separate rebuke, Mulrooney on Monday also blasted the DEA for ignoring his instructions about evidence submission when the agency tried to submit thousands of public comments digitally against his orders, calling the move “unprecedented and astonishing,” according to Marijuana Moment.

Both sides must now update the court every 90 days on the appeal’s status. The cannabis companies have 15 days to file their appeal.

2283000-2283354-marijuana rescheduling_order regarding village farms interna, hemp for victory and oco et al’s motio

 

2283000-2283354-government opposition to vfi et al request for reconsideration



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Arizona

Arizona marijuana sales continue slide through November

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The Arizona marijuana market hit its lowest point of 2024 in November, with a grand total of $89.6 million in sales, according to state data.

That includes $73.1 million in recreational sales and another $16.5 million in medical sales, both respective lows for the 2024 calendar year.

That’s also down 21% year-over-year from a total of $113.3 million in November 2023, according to statistics from the Arizona Department of Revenue. That month, Arizona dispensaries sold $88 million in adult-use cannabis and $25.2 million in medical marijuana.

The southwestern market continued to crater throughout the past year, with cannabis sales peaking in March last year at $117.6 million. That month, Arizona dispensaries sold $93 million in adult-use cannabis and $24.5 million in medical marijuana.

Since then, sales have remained depressed, seemingly inching lower and lower every month.

Although there was a slight rebound in October, up to just over $100 million, that may have been an outlier, with the macro trend angling downwards. The state is on pace to “finish well below” the annual sales totals of both 2023 and 2022, when Arizona shops sold more than $1.4 billion in back-to-back years, the Arizona Mirror reported.

Arizona is far from the only mature state marijuana market experiencing headwinds. Contraction has also been felt acutely for months now in plenty of other longstanding cannabis markets, including Colorado, Michigan and Nevada.



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Florida judge backs ban on cannabis sales at gas stations

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A Florida judge upheld state regulators’ decision to block Green Thumb Industries (OTCQX: GTBIF) from opening dispensaries next to Circle K gas stations, citing security concerns and risks to minors.

Administrative Law Judge Joshua Pratt ruled last week that Florida’s Office of Medical Marijuana Use acted appropriately when denying Green Thumb’s requests for dispensaries at Circle K locations in St. Petersburg, Ocala and Orlando, the News Service of Florida reported.

The ruling halts Green Thumb’s plans, announced in October 2022, to launch 10 “RISE Express” dispensaries through a partnership with Circle K’s parent company Alimentation Couche-Tard (OTC: ANCUF) across Florida.

Green Thumb CEO Ben Kovler called it a “futuristic deal” at the time.

The Florida proposal was Alimentation Couche-Tard’s way of carrying over a pilot program in Canada. Fire & Flower, a Canadian cannabis retailer, opened several stores adjacent to Circle K locations in Ontario in late 2022, Green Market Report covered at the time. The company previously launched similar co-located stores in Alberta.

In a letter denying the Ocala location request, Christopher Kimball, director of Florida’s Office of Medical Marijuana Use, cited what he described as “increased risks of crime” around convenience stores and concerns over youth presence at such locations, the News Service of Florida reported.

Will Hall and Daniel Russell, attorneys for Green Thumb Industries, argued in legal filings that state law contains no explicit restrictions on cannabis dispensaries operating near gas stations. Their petition included examples of existing dispensaries near convenience stores, including one Trulieve location that shares a Gainesville strip mall with a Wawa.

The company’s legal team specifically called out what they termed “unadopted rules” being applied by health officials.

“These unadopted rules restrict the growth of these businesses despite the fact that the entities are otherwise in compliance with statutory and properly promulgated regulatory requirements,” GTI’s attorneys argued in filings, according to the News Service of Florida.

The state health department initially responded cautiously to the proposal, telling Green Market Report in October 2022 that “Florida has never approved a Medical Marijuana Treatment Center to operate out of a gas station,” though officials noted such arrangements could potentially be approved if compliant with state rules.

But the case emerged amid leadership changes at Florida’s cannabis regulatory office. Former director Chris Ferguson, who had approved similar location requests, was reassigned weeks after Green Thumb’s Circle K announcement. Gov. Ron DeSantis then appointed Kimball, a former Navy JAG Corps attorney.

Green Thumb, which operates seven Florida dispensaries, filed an additional case contesting the denial of its proposed Ocala location, according to state administrative court records. In that pending petition, the company’s lawyers question whether there is any legal basis for assuming higher crime risks near convenience stores.

In his ruling, Pratt, a former lawyer for Gov. Ron DeSantis’ administration, emphasized that Kimball “considered all three of the variance requests on a case-by-case basis” rather than applying a “bright line policy,” the News Service of Florida reported.

Florida’s medical marijuana program currently serves more than 895,000 registered patients, according to state health department data.



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U.S. legalization could add $250 million to Tilray’s books

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Despite delays in cannabis legalization efforts in the U.S., Tilray (NASDAQ: TLRY) still has its eyes on that prize.

The company’s CEO, Irwin Simon, told investors on the company’s earnings call that if the U.S. legalized medical marijuana, it would “represent an additional $250-million opportunity for Tilray.” He based that figure on expectations that Tilray could capture 2-3% of the market if such an event occurred.

Tilray reported its earnings on Jan. 10 before the markets opened, and the stock plunged 10% based on the company’s missed expectations. The stock dropped another 3% on Monday after investors considered the company’s comments on the earnings call. 

Simon estimated that the current medical marijuana market in the U.S. is $8 billion-$10 billion, meaning a 2%-3% market share would deliver $160 million to $250 million business. Of course, cannabis can’t cross state lines in the U.S., much less country borders, but that didn’t stop Simon from speculating on the opportunity.

“We ship EU-GMP products all throughout Europe coming out of Canada, and some of the best cannabis grown today comes out of Canada … If anything is going to be legalized, it’s medical cannabis. I think medical cannabis ultimately would be sold through drug stores through the medical market and would be prescribed,” he said.

Simon also said that U.S. demand likely would require more supply of medical marijuana than is available.

Much of the call was focused on its alcoholic beverage segment, which has been growing rapidly thanks to acquisitions, but cannabis still makes up a larger percentage of the company’s revenues. However, the company’s beverage revenue is growing rapidly as it continues to make acquisitions.

Cannabis falls flat

Cannabis revenue for the company was essentially flat as sales dipped.

“Revenue from Canadian medical cannabis grew 6% despite the category being impacted by competition from the adult-use market, while revenue from Canadian adult-use decreased 18%, which was a result of our increased focus on preserving gross margin and maintaining a higher average selling price in categories with high excise tax,” Simon noted.

For example, Tilray said it was backing away from low-margin cannabis products, like vapes and infused pre-rolls, and prioritizing other categories at the expense of market share.

High hopes for hemp beverages

The company still sees potential in the cannabis beverage industry, despite THC drinks being expensive and restricted to being sold in cannabis stores in Canada.

“If we could sell that today in beer stores, if we could sell it on tap, how big a business that would be?” Simon mused. However, he did say he believed that sales would pick up as a result of “dry January.”

At the same time, hemp-derived beverages continue to be a growing market in the U.S. Ty Gilmore, president of Tilray Beverages North America, said the company anticipates that the broadest opportunity for such products would be brick-and-mortar stores, like convenience and liquor stores, rather than direct-to-consumer sales.

“There’s a big national chain that’s leaning into HDD9 in a really, really strong way. We absolutely are exploring and are taking part of DTC, but we see the much bigger opportunity in brick-and-mortar,” he said. “When you look at the consumer and what’s happening in this segment, and you can look at some big chains in Louisiana or what’s happened over the last couple of years in Minnesota, you can clearly see that there’s a consumer demand in brick-and-mortar stores to go to be able to look at brands.”

Simon made it clear he wished he could sell THC-infused beverages in the U.S., but in the meantime, the company will make hemp beverages instead. He also thinks Trump will be more friendly to the industry and may reduce regulations because he will look at the potential tax revenue.

“My thing is the Trump organization will look at this here just because of the dollars that will contribute to bringing in more to the tax dollars and also eliminating from the illicit market and eliminating all the confusion and helping with safe banking,” Simon said.



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