One of the loudest arguments against cannabis reform has always been about money. Legalizers are in it for the cash, prohibitionists have argued, and the science is just the wrapping paper. On July 2, in a filing before the D.C. Circuit, the Justice Department argued that the challengers’ alleged harms were commercial interests the CSA was never written to protect. Two of the groups trying to freeze marijuana rescheduling asked the court to hit pause on the reform, and the government told the judges that those two were guarding their own revenue.
The two groups behind the request are a drug-testing trade association and a pharmaceutical company that has never brought a product to market. The DOJ told the court that both of them “invoke pocketbook interests served by keeping all marijuana in Schedule I.” Their own sworn declarations, the government argued, undercut their request for a stay.
Here is the shape of it. In April, Acting Attorney General Todd Blanche moved FDA-approved cannabis medicines and state-licensed medical marijuana from Schedule I to Schedule III. A coalition of prohibition and drug-testing groups, two state attorneys general and a pharmaceutical developer is suing to undo that order, Kevin Sabet’s Smart Approaches to Marijuana and the attorneys general of Nebraska and Indiana among them. But the request to freeze the order while the case plays out came from just two of those parties, the National Drug and Alcohol Screening Association, or NDASA, and MMJ International Holdings. The government’s answer was blunt. The petitioners, it wrote, “come nowhere near satisfying the demanding standard for that extraordinary relief.”
The Accusation, Turned Around
For over a year, the case against reform has run on a single accusation. Sabet has made it repeatedly, including in a video posted as the DEA hearing opened: the government moved on marijuana because of industry money and campaign donations from cannabis executives, not because the science changed. The July 2 brief never answers Sabet directly. But read against that year of messaging, it lands as an inversion. If this is about money, it is worth asking whose.
Their Own Declarations
The answer is in the challengers’ own paperwork. NDASA told the court that its members would lose money if employers stopped screening for marijuana. In a sworn declaration, the group’s executive director estimated that marijuana-positive results are the largest source of revenue at the medical review offices that read drug tests, and projected a revenue decline of “at least 35%” over the next 6 to 12 months if the order stands. NDASA also attached a number to what compliance would cost its members: about $700,000, spread across 700 employers. Do the arithmetic and it comes to a thousand dollars each. That is the figure the group called irreparable harm, the kind of injury that is supposed to justify a court freezing federal drug policy. A thousand dollars per employer. One cannabis attorney who reviewed the motion did the same math and called the argument “ridiculous.”
MMJ’s claim is stranger. The company says it spent eight years and $10 million developing cannabinoid drugs the proper way, through the FDA, and that rescheduling rewards state-licensed competitors who skipped that path. The problem, as the DOJ pointed out, is that MMJ has no product on the market. It has applications pending, not medicine on shelves. You cannot lose your share of a market you have not entered. Its complaint, the government argued, describes a policy it dislikes, not an injury a court can fix.
Hellbound and Down 