In partnership with The Fresh Toast
The cannabis industry has never been a favored industry by U.S. Attorney General William Barr. His predecessor, former AG Jeff Sessions, also had issues with the industry, rescinding the Cole Memo in January, 2018, (“a return to the rule of law”) that provided the only source of protection against federal interference in the cannabis business.
Recently, Barr’s displeasure surfaced during a House Committee on the Judiciary hearing on June 24, where John Elias, a career employee of the Department of Justice working as an anti-trust division prosecutor on such issues as price-fixing schemes in the pharmaceutical industry, testified as a whistle-blower about Barr’s involvement in full-scale reviews of mergers in the cannabis industry, including the messy MedMen and PharmaCann merger.
Some speculated that Barr’s unusual interest in mergers that didn’t meet the criteria for any anti-trust investigation reflected what he said in his confirmation hearing in Congress that the current marijuana situation is “untenable” and really has to be addressed. “It is almost like a back-door nullification of Federal law,” he said.
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Nine other cannabis business mergers were investigated. It was beginning to look like Barr was just harassing the cannabis business, spooking owners with subpoenas from the DOJ, with the rationale that the justice department “had not closely evaluated this industry before.”
The Drug Enforcement Administration (DEA) has been immovable on any positive movements to help the marijuana industry, tossing about ideas about rule-making for growing marijuana and enabling more scientific research that most industry watchers know are just bogus stall tactics. In a press release last March about expanding marijuana research, the DEA noted that there are more researchers registered to conduct research on marijuana, marijuana extracts, and marijuana derivatives than on any other schedule I substance in the United States. “More than 70 percent of DEA’s total schedule I research registrant population is registered to conduct research on these substances.”
But the DEA holds the ultimate trump card, holding firm on any change to their scheduling of marijuana as one of the worst, most abused drugs on the planet with no currently accepted medical use.
Now things are getting interesting, and Barr may be getting backed into a corner.
A medical marijuana lawsuit questioning the constitutionality of the DEA’s scheduling of medical marijuana was filed July 2 in the Supreme Court in a case which, at different times over the last three years as it moved through different courts, had included both Sessions and Barr as defendants.
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The case was first brought by NFL pro Marvin Washington’s challenging Sessions and DEA’s scheduling, and was shot down by the district court of the southern district of New York on February, 26, 2018.
Then Washington along with five others — including Jose Belen, a decorated Army veteran using medical marijuana for PTSD — challenged Barr on the same issue, losing that case on February 3, 2020.
The defendants may have just enough pedigree and social firepower to get the attention of the justices. Washington has advocated for using medical marijuana for concussions, and is an investor and co-owner of a number of cannabis ventures. He is also a NFL league ambassador for Athletes For Care, advocates for the health, safety and wellbeing of more than 2 billion people of all ages who compete annually in sanctioned sports globally. Belen is the co-founder of Florida Mission Zero, a nonprofit organization dedicated to combating the PTSD and the suicide epidemic plaguing U.S. veterans.
Maybe the issues these plaintiffs represent will have an impact on the justices.
In an interesting coincidence, the Florida Supreme Court is working on a nearly identical case about a 2017 Florida constitutional amendment to legalize medical marijuana in the state. In a rare move, the justices in that court recently asked for more information and a second round of hearings, scheduled for October 7, 2020
As of this reporting, the U.S. Supreme Court has yet to decide if they will take up the Washington et. al. case. But when reviewing other cases they ruled on so far in 2020 —three of which named Barr as defendant, all of which he lost — and considering the two pending immigration-related Supreme Court cases naming Barr as defendant, it looks like the court will have Barr on its agenda for the next year or so. And that may make a difference in how they perceive him, his motivations, and the medical cannabis businesses who are challenging him.