The Motion to Stay DEA’s Schedule III Rule: Strong Enough to Stick?

With just over two weeks until DEA’s expedited processing deadline for state legal operators to apply for DEA registration, several petitioners litigating the legality of the DEA’s final rule have filed a motion to stay DEA’s final rule in the D.C. Circuit (“Motion”). The Motion was brought by the National Drug and Alcohol Screening Association, Inc. (“NDASA”) and MMJ International Holdings and its subsidiaries (“MMJ”). Surprisingly, Smart Approaches to Marijuana (“SAM”), Nebraska, and Indiana were not parties to this Motion. NDASA is a trade association for the drug and alcohol screening industry, and MMJ “are entities that have invested over $10 million and eight years developing pharmaceutical Schedule I cannabinoid therapeutics exclusively through the federal FDA and DEA regulatory pathways.”

I am not going to sugarcoat it: this Motion is good. It was written for its audience, the D.C. Circuit, and focuses primarily on a D.C. Circuit case from 1977 (the “NORML Case”), where the court held that 811(d)(1) could not be used by the Attorney General (“AG”) to unilaterally reschedule a substance without applying the processes set forth in 811(a) and (b) — a HHS medical and scientific determination and recommendation, plus notice and comment. I’ll discuss below why the NORML Case argument is not as strong as it may sound, but by framing their position around D.C. Circuit precedent, the petitioners may be forcing the court’s hand to hear the case on the merits.

As I recently wrote, if the court finds a plaintiff has standing and hears the case on the merits, it is more likely than not that the final rule is stayed and ultimately reversed. So, petitioners adding weight on why the court should hear the case matters. Telling the court that it already issued a decision that would invalidate the AG’s final rule — so how can it let this one stand — is compelling. The tricky part is getting past the standing threshold. Which I believe NDASA may accomplish.

Standing

In law, “standing“ is the legal capacity of a party to bring a lawsuit or participate in a case. To have standing, a plaintiff must demonstrate a direct, tangible stake in the outcome and show that they have suffered, or will suffer, a specific, concrete injury due to the action being challenged. The doctrine of standing ensures that someone cannot challenge a law simply because they don’t like it or the policy behind it. The law has to affect them.

Much of the Motion is devoted to showing why both NDASA and MMJ have standing. I was surprised at how weak MMJ’s argument is, but NDASA made a strong one.

NDASA’s arguments

NDASA argues that: (1) it will suffer unrecoverable losses in revenue because businesses will stop testing for marijuana; and (2) that NDASA’s members who test their employees for drugs will incur unrecoverable costs revamping their drug testing policies. NDASA’s Executive Director estimates that moving state legal medical marijuana to Schedule III will cost its 700 employer members over $700,000. That number sounds high until you do some basic math and realize it amounts to only $1,000 per employer. Now, the amount of the losses is not necessarily relevant, but I point it out to show how ridiculous this argument is.

Next, NDASA’s Executive Director states that the rescheduling order will put medical review officers out of business or force them to sell to larger companies. These are the officers who, after someone tests positive for a substance, review whether the substance was being taken legally (i.e., by prescription). The argument goes: state legal medical marijuana is not dispensed through a pharmacy, so a doctor’s name does not appear on the medical marijuana packaging (i.e., the bottle). Compounding the problem, not all state medical marijuana systems keep recommendation records or would allow patient records to be disclosed. As a result, it will become much harder for these officers to verify whether a positive THC test was due to illicit use or medical use. And this increased effort will increase costs.

Because of this increased cost, employers are likely to stop testing for THC altogether, which will put these officers out of business or force them to sell to larger companies. There is something inherently off about our system when we are discussing moving medical marijuana from Schedule I to III and a persuasive argument for preventing the move is that the testing business may be harmed. Despite how ridiculous these arguments may sound, they do show NDASA’s members would suffer a specific, concrete injury due to the action being challenged.

MMJ’s arguments

Prior to any motions being filed, I expected MMJ to join SAM in litigation. It made sense to me that a business waiting for DEA registration for over eight years and following FDA and DEA requirements the entire time, would be aggrieved. I assumed an argument showing a specific, concrete injury due to the rescheduling order would be simple for them. I guess I was wrong. The argument made by MMJ appears to put them in the same position they found themselves in in SAM v. Kennedy, where the Circuit Court dismissed the case for lack of standing. I am not disappointed, just surprised. I do feel bad for MMJ because they appear to have gone about everything properly. I would be upset too if I was in their shoes. But for their disappointment to trigger standing, they should have to show more direct harm than what was provided.

MMJ argues that the rescheduling order will inflict irreparable harm on MMJ because they have invested millions for nearly a decade “lawfully developing Schedule I cannabinoid treatments” and that moving competitors’ products into Schedule III will enable those competitors to flood the market and prevent MMJ from obtaining the first-mover advantage it was positioning itself to capture. Again, this argument seems to make sense — until you peel back only one layer. These markets already exist. DEA did not create them by issuing the rescheduling rule. So, MMJ’s grievance cannot be solved by a stay or even by a court overturning the rescheduling order. Further, none of these state legal products are pharmaceuticals, which is exclusively what MMJ manufactures.

Since MMJ can’t show that this rule harms them any differently than if the rule didn’t exist, I doubt they would survive a standing challenge on their own.

The merits argued in the Motions

In the Motions, petitioners make two main argument:

1. NORML v. DEA

As I mentioned above, the Motion focuses primarily on the NORML Case. There, the D.C. Circuit held that the AG could not use 811(d)(1) to undercut the medical and scientific review required by 811(a)–(b). The court held that 811(d)(1) allows the AG to set the minimum scheduling threshold for where a drug can be placed pursuant to international treaty obligations. So, if treaty obligations would allow a drug to be placed anywhere between Schedules 1 and 5, then 1 is the minimum. The CSA then requires the AG to seek a medical and scientific determination from HHS as to where the drug should be scheduled. HHS’ recommendation is the ceiling for where the drug can be placed.

There are two big problems with this argument

The first is that the D.C. Circuit’s reasoning was wrong. Courts are supposed to interpret and apply the law as it is written. Only when there are ambiguities are they to look at the legislative history and surrounding discussions to understand the intent of the legislators. Here, there are no ambiguities, and the court’s holding simply goes against the statute’s plain meaning: 811(d)(1) clearly says that “the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out” United States treaty obligations. The language assigns responsibility to the AG alone.

Further, 811(d)(1) goes on to state that such a decision is to be made without regard to “the procedures prescribed by subsections (a) and (b) of this section” — HHS review, and notice and comment. That is about as clear as you can get from Congress. 811(d)(1) was intended to grant the AG unilateral authority to reschedule a substance pursuant to treaty obligations without regard to HHS’ medical and scientific findings. And honestly that intent makes sense.

A brief history lesson

Marijuana was incorporated into the Single Convention and the Controlled Substances Act (“CSA”) to ensure that both the federal government and the states had to criminalize it. Harry Anslinger, the chief architect behind criminalizing marijuana under the Single Convention and incorporating that prohibition into the CSA, likely did not want to leave the criminality of cannabis up to an HHS medical and scientific review.

Anslinger had a single focus: to control and prohibit marijuana throughout the US, both state and federal. Anslinger knew that “under the taxing power and regulation of interstate commerce it would be almost hopeless to expect any kind of adequate control” without something more (this was pre-Wickard v. Filburn, for those legal junkies like me). That something more was international treaty obligations. Anslinger was also aware that medical and sociological reviews of marijuana were being conducted, including one commissioned by New York City Mayor Fiorello La Guardia. He wouldn’t have wanted to risk that marijuana’s scheduling placement would be decided on science alone. Treaty authority was the key to control.

Faced with the concern that several groups were lobbying states to liberalize control of marijuana, Anslinger determined that international treaties were the only way to stop them. “In the convention it is very specific that we must prevent its misuse. If the United States becomes a party to the 1961 convention, we will be able to use our treaty obligations to resist legalized use of marihuana” (at the time, no one could have predicted the state legal markets we have today or the gaping loopholes within the Single Convention allowing legal adult-use markets to exist).

Given this history, Anslinger likely would have preferred maintaining control under international treaty obligations, knowing that once cannabis was placed in the strict categories of the Single Convention, removing it from scheduling under the CSA would be almost impossible.

The D.C. Circuit simply ignored this history (as all legislatures have) when analyzing 811(d)(1) and simply legislated from the bench in issuing this decision.

Now back to the Motion at hand

The second problem is that we live in a different world than the one that existed in 1977. Back then, cannabis was placed in Schedules I and IV of the Single Convention, a placement signifying that cannabis had no therapeutic efficacy. In 2020, that changed. The Commission on Narcotic Drugs voted to remove “cannabis” (international treaties do not distinguish between marijuana and hemp and instead use the term “cannabis”) from Schedule IV, leaving it exclusively in Schedule I — a move that acknowledged its therapeutic potential. Two years earlier, in 2018, DEA placed Epidiolex (a pharmaceutical made from marijuana) into Schedule V before completely removing it from scheduling after the 2018 Farm Bill became law. Epidiolex at the time fell into the definition of marijuana, a schedule I drug, but somehow was able to fit into Schedule V without issue. Finally, in 2023, HHS provided DEA with a recommendation that included a robust accounting of state-conducted scientific studies showing the medical efficacy of marijuana. Each of these developments squarely addresses statements by the D.C. Circuit in the NORML Case justifying its abandonment of the plain language of 811(d)(1). To paraphrase an argument from petitioners in their Motion against DEA, a court can’t legislate by judicial fiat to create law it disagrees with.

Lastly, the petitioners make an argument that is difficult to square. They argue that under NORML Case precedent, “where a substance could be placed in more than one Schedule, the issue should be “fully litigated at a DEA rulemaking hearing.” The problem is that Duane Boise, MMJ’s CEO, argues in his declaration in support of the Motion (and pretty  much anywhere he can publish) that such administrative hearings are unconstitutional.

The problem with these counterarguments is that if the defendants is permitted to make them, then the industry has likely lost Schedule III. As I have mentioned many times before,  I believe that this Schedule III order will fall if the court allows the case to be argued on the merits.

2. DEA regulations

The secondary argument from MMJ and NDASA is that DEA is required to submit proposed regulatory changes for notice and comment before they become effective. This I believe is a legitimate argument, but I don’t agree with how far petitioners claim DEA went in proposing regulations.

In the final rule, the AG outlines certain regulatory changes that will take effect to ensure the US maintains compliance with the international drug treaties. While DEA will certainly have to account for finished products, these same rules governing flower and biomass are already implemented through 21 CFR 1318.04. That section covers, among other things, requirements for delivering crops to DEA, DEA’s purchase and possession of the crops, and import and export authorities. All that is required of DEA is to make minimal changes to these regulations to include state legal medical marijuana finished products. The AG, in a 2024 Proposed Rule to move marijuana into Schedule III, already addressed the legality of DEA issuing regulations to address minor changes needed to ensure US compliance with its international obligations. 21 USC 871(b) authorizes the AG to issue regulations “necessary and appropriate for the efficient execution of his functions under this subchapter;” and 822(b) allows the AG to regulate “the extent” of manufacture of a drug through registration.

Such authority can be used to address quota requirements for marijuana in Schedule III and to incorporate finished products into the current DEA framework. All minimal changes. The question therefore is not whether these regulatory changes were appropriate, but whether they should have gone through notice and comment. Again, though, if the AG has to make that argument, the industry has likely already lost.

The most frustrating part

The most frustrating part of all of this is that if the AG had taken a little more time to flesh out its plan, Schedule III would not be at risk. If the AG, instead of reinstating the hearing, had simply issued a final order moving “marijuana” into Schedule III, none of this would be an issue. Doing so would have gutted the petitioners’ arguments around NORML v. DEA, because HHS recommended Schedule III. Then, under a separate proposed rule, DEA could have proposed the current state legal medical marijuana framework. That would have insulated marijuana in Schedule III and focused the argument exclusively on the state legal market gaining access to DEA registration.

Even better — and legally justifying the registrations — DEA could have worked with FDA on establishing a program by which each legal medical marijuana market would submit an Investigational New Drug (“IND”) application to the FDA for their state programs. FDA would then have authority under 21 CFR 312.10, to waive application requirements if it found that doing so would not pose a significant and unreasonable risk to human subjects. This implies that some reasonable risks are tolerated.

While some people may pause here and ask how FDA could satisfy that standard, I would counter with studies showing people are drinking significantly less alcohol after consuming marijuana. Looking at the devastating effects of alcohol, including the 488 people who die each day from excessive alcohol use, this substitution sure seems like a public health benefit to me. As I have been talking about since last year and will be presented in Project Four 2029 when it goes live later this year, by coordinating DEA and FDA under an IND, it would have legitimized DEA’s acknowledgement of state legal medical marijuana within the FDA drug framework and further insulated the rule from judicial challenge. There are numerous statutory and regulatory pathways for conducting research. And each of those pathways can lead to different legal commercial markets (i.e. establishing scientific pilot programs for medical, or adult-use, or social equity, or intoxicating hemp beverages).

What DEA should have done is first ensured that marijuana remained in schedule III by simply moving the substance under the initial rescheduling proposed rule. Then DEA and FDA should have worked together to implement scientific medical pilot program under INDs aimed at researching the state legal medical market, patient results, and the effects of legalization on society as a whole.

Whether a Stay Will Be Issued

The Motion will not be decided unless the petitioners can show standing. As discussed above, NDASA has the best shot. If the court determines that NDASA (or the state petitioners who were not included in this Motion) have standing, then, in determining whether a stay should be issued the Court considers

“four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. . . . The first two factors are the most critical and may be balanced against each other, thus a ‘stay may be granted with either a high probability of success and some injury, or vice versa”.

NDASA argues, quite successfully, that irreparable harm will come to them if the stay is not issued, and the DOJ will incur any harm if the stay is issued. The argument is that the government has lived with marijuana in Schedule I for decades — what’s a few more months?

Adding to the persuasiveness of this argument is a declaration from Bertha K. Madras, a Ph.D. from Harvard. Dr. Madras provides a narrative for the court about how dangerous marijuana is to our youth, pregnant women, and society as a whole. She cherry-picks data, some of which is exaggerated (for example, her use of a survey stating that 69% of Colorado dispensaries recommended marijuana to pregnant women. Dr. Madras cites a 2018 study, and 81 Fed. Reg. at 53775 (Aug. 12, 2016), which says nothing of the sort). Dr. Madras’ argument, like so many others, rings hollow when faced with the fact that we live in a country where alcohol use kills hundreds each day in the US, but binge drinking is celebrated. No one is saying that marijuana is completely safe and poses no harms to society. What is being said is that medical marijuana belongs in at least Schedule III. It has medical efficacy and harms that are much less than those of substances in Schedules I and II. That is all. Unfortunately, Dr. Madras’ Harvard pedigree and declaration will likely be persuasive to a court that has historically sided against subject agency overreach.

Conclusion

While there are some problems with this Motion, the arguments appear strong enough to both grant NDASA standing and to justify the court ordering a stay on the Schedule III final rule. Further, this Motion does not even address what I believe is the petitioners’ strongest argument — that 811(d)(1) grants the AG authority to reschedule a “drug,” not state legal programs. If the government is unable to persuade the court that petitioners lack standing, I fear that the industry celebration will be short-lived.

For more on DEA’s Rescheduling please check out these recent posts:

1. Standing Is Everything: Three States Join the Medical Marijuana Rescheduling Fight
2. Medical Marijuana Rescheduling Q&A: Cutting Through the Noise
3. A Calculated Bet: DEA Registration is Open, and the Clock is Ticking
4. Marijuana Rescheduling and Income Tax
5. The U.S. Opens Its Medical Marijuana Market to Global Trade (For Now); Broader Marijuana Rescheduling on Deck

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Harris Sliwoski Earns Chambers USA Cannabis Law Recognition for 2026

Chambers and Partners, the London-based legal research and rankings organization, has once again recognized Harris Sliwoski among the leading cannabis law firms in the United States. In its 2026 rankings, Chambers ranked Harris Sliwoski in Band 4 nationally and recognized two of the firm’s cannabis attorneys for their industry-leading work: Vince Sliwoski in Band 3 and Christian Sederberg in Band 1.

Chambers and Partners evaluates law firms and attorneys based on extensive independent research and client feedback, considering factors such as:

• Technical legal ability
• Professional conduct
• Client service
• Commercial awareness
• Diligence
• Commitment

View the Harris Sliwoski ranking HERE.

View Vince Sliwoski’s ranking HERE.

View Christian Sederberg’s ranking HERE.

Denver-based attorney Christian Sederberg received Chambers’ highest individual cannabis law ranking, Band 1. Christian is widely recognized as one of the pioneers of the regulated cannabis industry and has spent more than 15 years helping businesses, investors, and entrepreneurs navigate the rapidly evolving cannabis marketplace. He regularly advises clients on licensing, regulatory compliance, corporate transactions, and strategic growth initiatives across the cannabis sector.

Portland-based Vince Sliwoski was again recognized for his work in Cannabis Law, earning a Band 3 ranking. Vince is widely regarded as one of the country’s leading cannabis business attorneys and has also spent 15 years helping cannabis businesses navigate complex regulatory and business challenges. taught one of the nation’s first law school courses dedicated to cannabis law and policy, and runs the award-winning Canna Law Blog.

For more information about Harris Sliwoski’s Cannabis Law practice, please click HERE. To stay informed on cannabis industry legislation, regulation, and compliance, subscribe to our Canna Law Blog.

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Minnesota’s New Cannabis and Hemp Laws

Minnesota continues to refine its cannabis framework with an Omnibus Cannabis Bill affecting licensed cannabis (marijuana) businesses, hemp operators and medical patients. The new package was signed by Governor Waltz last week. Some of the changes are effective immediately, while others take effect January 1, 2027.

It’s common for state cannabis programs to evolve through annual legislation and rulemaking. The changes are often dramatic in the handful of years following program launch. Here, the package was described as “maintenance” by State Rep. Jessican Hanson, but we view it as very impactful. Minnesota’s new cannabis legislation concerns access, licensing, distribution, and product standards in ways that should matter to both hemp and cannabis operators.

If you’d like to review the new legislation, you can find the Omnibus Cannabis Bill here. Note: it’s a lot of reading! New text is underlined, and you’ll find removed sections of existing laws shown  in strike-through.

If you’d rather skip that painful reading, here is a high-level summary, broken into bullet points where possible for readability:

Unified supply chain

The new law eliminates the requirement to maintain separate medical and adult-use supply chains for licensees in CTS. Businesses with a medical endorsement may now operate under a single cultivation, manufacturing, and inventory system, including unified tracking within Metrc. This change is intended to reduce operational inefficiencies while preserving patient access.

Every state that has rolled out an adult-use program following a medical marijuana program has merged supply chains to some extent. Here, Minnesota follows suit.

Medical market safeguards

These safeguards tie into the program “merger” to some extent. To ensure continuity of care, the law imposes new obligations on medical-endorsed businesses. These include:

• Employment of a licensed pharmacist or medical cannabis consultant
• Priority service measures for patients (e.g., dedicated lines, curbside pickup, advance ordering)
• Mandatory stocking of products identified as high medical need
• A 24-hour fulfillment expectation for patient requests across the market

Note: certain medical products are exempt from adult-use potency limits, and hemp-derived cannabinoids are permitted in medical formulations.

New macrobusiness license (Effective Jan. 1, 2027)

The existing medical cannabis combination business license will sunset. In its place, the legislation rolls out a “macrobusiness” license, featuring:

• Up to 38,000 square feet of indoor canopy (reduced dramatically, from 90,000)
• Up to eight retail locations, with location requirements tied to high-need areas
• A statewide cap of eight licenses until January 1, 2030

Existing medical licensees must convert to microbusiness licensure by January 1, 2027. Incremental canopy increases are available over time for compliant operators. The law also introduces a petition process for smaller businesses seeking to move into higher license tiers.

Incentives for licensees with medical endorsements

Operators with medical cannabis endorsements receive meaningful benefits:

• Expanded cultivation limits for micro, mezzo, and cultivation licensees
• Additional retail locations in designated high-need areas
• Authority to deliver directly to patients and caregivers
• Expanded transport rights for certain license types

In exchange, a portion of increased production must be supplied to other medical-endorsed businesses.

Hemp industry transition

In advance of the federal re-definition of “hemp” effective November 12, 2026, the law allows dual licensure for hemp and cannabis businesses, enabling hemp operators to transition into the regulated cannabis market. It also authorizes new “ratio hemp-infused cannabis products” within defined cannabinoid limits, as follows:

• containing no more than 100 milligrams of certain cannabinoids (CBD, CBG, CBN, or CBC) per serving.
• containing a maximum of 10 milligrams of THC per serving.
• containing 200 milligrams of THC per package for edibles (or two servings per container for beverages).

Reporting and oversight changes

The Office of Cannabis Management (OCM) will transition to a streamlined, bifurcated reporting structure consisting of an annual market analysis, and a consolidated legislative report due annually, by January 15.

The revised framework attempts to prioritize public health, safety, and market data, while reducing prior reporting burdens.

Additional regulatory updates

Again, the law is expansive and contains myriad changes. Here are some of additional highlights on our review:

• Local governments must adopt reasonable cannabis regulations (which is great!) and apply population-based licensing thresholds using upward rounding.
• OCM gains expanded authority to deny or revoke licenses and enforce compliance.
• Preliminary license approvals now include mandatory extension rights.
• Social equity applicants may hold up to four licenses with capped ownership stakes.
• Compliant cannabis and hemp activities are expressly protected under state law.

Timeline and next steps

Most provisions of the new law take effect soon—on August 1, 2026. The macrobusiness framework becomes effective January 1, 2027, as noted above.

All Minnesota cannabis businesses—particularly those with or considering medical endorsements—should evaluate operational, licensing, and compliance impacts now. Hemp operators face a more immediate decision window given the November 2026 federal deadline, as we’ve repeatedly explained in our hemp-related blog posts.

Contact us if you have any questions on what these changes mean for your Minnesota cannabis business!

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Star signs and cannabis strains: June 2026 horoscopes

Your June 2026 horoscopes brings a powerful mix of growth, reflection, and fresh opportunities.

The post Star signs and cannabis strains: June 2026 horoscopes appeared first on Leafly.

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Standing Is Everything: Three States Join the Medical Marijuana Rescheduling Fight

On May 22, the states of Nebraska, Indiana, and Louisiana filed a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) challenging the Acting Attorney General’s (“AG”) final agency action moving FDA-approved and state-licensed marijuana into Schedule III of the Controlled Substances Act (“CSA”). The DC Circuit has since consolidated this petition with the one previously filed by SAM, Inc. (“SAM”) and the National Drug and Alcohol Screening Association, Inc. (“NDASA”).

Similar to SAM’s petition, the States’ petition alleges that the AG: (1) failed to comply with the Administrative Procedure Act; (2) exceeded or acted inconsistently with authority under the CSA and the Single Convention on Narcotic Drugs; and (3) acted arbitrarily, capriciously, and in abuse of discretion. Prior to consolidation, SAM had been ordered to submit procedural motions, which would include a potential motion to stay the rescheduling order, by June 4, 2026. No such deadline was set in the States’ case, but it is expected that the court will coordinate those deadlines going forward.

What is Standing?

In law, “standing” is the legal capacity of a party to bring a lawsuit or participate in a case. To have standing, a plaintiff must demonstrate a direct, tangible stake in the outcome and show that they have suffered, or will suffer, a specific, concrete injury due to the action being challenged. The doctrine of standing ensures that someone cannot challenge a law simply because they don’t like it, or the policy behind it. The law has to affect them.

This doctrine was recently in the news again in federal cannabis litigation, when another lawsuit brought by SAM was dismissed for lack of standing. In SAM v. Kennedy, SAM had sought to block a new Trump administration initiative to cover up to $500 worth of hemp-derived products each year for eligible Medicare patients. That program is still on track.

Why SAM and NDASA Likely Cannot Survive Standing

As the SAM v. Kennedy litigation made clear, standing is a threshold that is difficult to establish. On May 22, the U.S. District Court for the District of Columbia held that SAM and its co-plaintiffs lacked standing in that case. The same analysis would almost certainly apply to SAM’s Schedule III petition.

An association can establish “associational standing” when: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

To establish “organizational standing,” plaintiffs must “plausibly allege they suffered an ‘actual or threatened injury in fact’ to their own interests that is ‘fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.’“

Under either theory, SAM and NDASA must show “an injury that is actual, imminent, or certainly impending” — a showing they could not make in SAM v. Kennedy and are unlikely to make in the Schedule III litigation.

Why the States May be Different

The addition of Nebraska, Indiana, and Louisiana opens new avenues for standing that SAM alone could not access or satisfy.

Particularized Injury

To establish particularized injury standing, a state must demonstrate an injury that is: (1) concrete, particularized, and actual or imminent; (2) fairly traceable to the challenged action; and (3) redressable by a favorable ruling. This form of standing will likely be the most difficult avenue for the State Petitioners to pursue. Louisiana has an established medical marijuana program, meaning the AG’s final rule — which benefits state-licensed programs — cuts against rather than in favor of Louisiana’s claimed injury. Nebraska is in the process of rolling out its own medical marijuana program (maybe), placing it in a similar position, especially since voters overwhelmingly approved a medical marijuana measure in 2024.

Indiana presents a different theory: as a state with no medical marijuana program and strict prohibition laws, it could argue that rescheduling state-licensed medical marijuana at the federal level would foreseeably increase the flow of marijuana across its borders, causing a concrete harm to the state. However, demonstrating that this injury is imminent and fairly traceable to the rescheduling rule specifically — rather than to the pre-existing legal markets in surrounding states — will be a challenging causal link to establish.

Parens Patriae

A state may also establish standing as a quasi-sovereign representative of its population. “A quasi-sovereign interest must be sufficiently concrete to create an actual controversy between the State and the defendant.”

Courts have long recognized that states may represent their residents in suits involving threats to public health, holding that “if health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them.” To withstand such an action, however, the state must have “a quasi-sovereign interest in the health and well-being — both physical and economic — of its residents in general,” and must “allege injury to a sufficiently substantial segment of its population.” A key factor is whether “the State, if it could, would likely attempt to address [the issue at hand] through sovereign lawmaking powers.” Further, many cases have required that at least one of the state’s citizens satisfy Article III standing.

Of the three states, Indiana presents the strongest case for parens patriae standing. Because Indiana has no medical marijuana program and has consistently chosen prohibition, it can credibly argue that its sovereign policy judgment — that marijuana is harmful to its citizens — is being undermined by a federal rule that effectively legitimizes state-licensed marijuana and foreseeably increases its availability.

Louisiana and Nebraska, by contrast, face a fundamental tension: both states, through their legislatures or their voters, have already determined that medical marijuana is in the best interest of their citizens’ health and well-being. It is difficult to simultaneously hold that position and argue that the AG’s rule — which benefits those same state-licensed programs — threatens the health and well-being of their populations.

It bears noting that most parens patriae cases do not arise from challenges to federal agency action, which could complicate this theory. The conservative wing of the Supreme Court believes that there is “significant doubt on a State’s standing to asset a quasi-sovereign interest – as opposed to direct injury – against the Federal Government.” When such a state-federal conflict exists, it is the United States, and not the State, which represents the citizens.

Statutory Standing

Finally, a state may derive standing from a procedural right granted by Congress. In Massachusetts v. EPA, the Supreme Court recognized that states are not ordinary litigants and are entitled to “special solicitude” in standing analysis when asserting a quasi-sovereign interest tied to a congressional grant of procedural rights.

While the CSA and APA provide states with specific authorities and obligations, they are not as express as those provided to states under EPA laws.

The Merits, if Standing is Established

Standing is likely dispositive in this litigation. If any petitioner clears that hurdle, the rescheduling rule was poorly conceived, and faces serious legal problems on the merits.

As we have written previously (here, here, here and here), the AG did not simply reschedule a substance as permitted under 21 U.S.C. § 811(d)(1). The rule effectively rescheduled state-legal programs. Moreover, the FDA is the agency responsible for medical determinations and played no meaningful role in the rulemaking process (outside of providing medical and scientific determinations for the other rescheduling action). A court reaching the merits will likely have strong grounds to find that the final rule exceeded AG and DEA authority.

Conclusion

If this case moves forward, the cannabis industry must begin thinking seriously about alternative strategies for advancing sensible cannabis policy. In the coming weeks and months, I will be outlining one such approach: Project Four 2029. Stay tuned.

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Jason Adelstone to Speak at Global Cannabis Executive Summit in Toronto, June 1

Harris Sliwoski attorney Jason Adelstone will speak at Grow Up’s CannaVision Global Cannabis Executive Summit in Toronto, an exclusive invitation-only event for CEOs, presidents, and top-level executives leading the future of the global cannabis industry.

Jason’s panel is at 12:00pm EST on Monday, June 1. The title is “Moving Cannabis Across Borders: What It Takes.”

Jason’s work focuses heavily on international cannabis law, regulatory compliance, and cross-border business strategy. As global cannabis markets continue to evolve, operators increasingly face complex legal and commercial questions that reach beyond any single jurisdiction. These conversations have become especially important as businesses evaluate international expansion, regulatory changes, and emerging market opportunities.

GrowUp brings together stakeholders from across the cannabis ecosystem, making it an ideal setting for meaningful discussions about where the industry is headed and the practical challenges businesses face along the way.

If you’ll be attending CannaVision in Toronto, connect with Jason and say hello.

Learn more about the conference and session details here: Grow Up Conference.

The post Jason Adelstone to Speak at Global Cannabis Executive Summit in Toronto, June 1 appeared first on Harris Sliwoski LLP.

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How to Acquire a Minnesota Cannabis License

The Minnesota cannabis program is online and rolling out slowly. Too slowly, in this writer’s humble opinion. That said, a handful of tribal dispensaries have been operating since 2023, and adult use sales at non-tribal shops began in September 2025.

To the good, sales are ticking up each month. In April, the Office of Cannabis Management (OCM) tracker showed $15M in collected revenue from adult-use sales, and $10M in collected revenue from medical sales. This steady improvement, along with Minnesota’s robust population, regulatory philosophy, and the income tax relief that may come with federal rescheduling, make it an interesting time for a cannabis licensing play in the North Star state.

This blog post gives high-level information on acquiring a Minnesota cannabis license, in FAQ format. By way of background, I am a native Minnesotan and locally licensed business lawyer who has followed this program since inception, and supported the cannabis industry since 2011.

What is the first step to getting a Minnesota cannabis license?

The first step is to determine which license type you are after. Only certain license types are open for application with OCM. These include:

• Cannabis Retailer
• Cannabis Wholesaler
• Cannabis Event Organizer
• Cannabis Testing Facility
• Lower-Potency Hemp Edible Manufacturer

Other license types are not available for application with OCM (the lottery closed last summer), but may still be sourced on the secondary market. These license types include:

• Cannabis Microbusiness
• Cannabis Mezzobusiness
• Cannabis Cultivator
• Cannabis Manufacturer
• Cannabis Transporter
• Cannabis Delivery Service
• Lower-Potency Hemp Edible Retailer
• Lower-Potency Hemp Edible Wholesaler
• Medical Cannabis Combination Business

What is the license acquisition process?

For license types on offer with OCM, you need to create an Accela account. Beyond that, the OCM User Guide contains a wealth of information on the license application process—too much to summarize here..

For license types on offer in the secondary market, see Buying and Selling Minnesota Cannabis Licenses. I published that piece back in November, but the information is still good.

What documents are required?

Applicants need to provide ownership and control disclosures, a preliminary business plan, a preliminary operations plan, a security plan, and other supporting materials tied to the specific license type. OCM also requires company capitalization information, and labor peace agreements are required for many license types.

Who can apply for a cannabis license in Minnesota?

MN Statute 342.16 contains a full list of “ownership disqualification and requirements.” Generally speaking, applicants must be at least 21 years of age, and there is no residency requirement. If the applicant or license holder is a business entity, though, that entity must be formed or organized in Minnesota.

What happens after I submit the application?

OCM reviews your application for basic eligibility and completeness, and qualified applicants move forward in the process. Background checks are required for every qualified applicant and true party of interest (as per MN Statutes 342.185).

Do I need a location before applying?

No. None of the lottery applicants we worked with had a location to start, in fact. However, you will eventually need to secure a compliant location and obtain local zoning approval.

What role does local government play?

Local approval is a major part of the process, “serving as a near-final approval check on cannabis businesses nearing the awarding of a state license…”, to quote OCM. In short, local governments must certify zoning compliance for a business to receive a state license, and, if applicable, retail registration is needed in some cases.

How long does the process take?

It depends. Per statue, OCM has 90 days to issue a license or a denial from the point when an applicant completes a site registration, uploads final application documents, and requests a zoning compliance certification. In our experience, local zoning step is often the hardest step, and OCM encourages applicants not to complete site registration until that hurdle is cleared.

What is the most common reason applicants struggle?

Finding a location and clearing local zoning is probably the biggest challenge we see. On the social equity side, we’ve also seen several applicants falter when it comes time to gather financial support. Those licenses are turning out to be far less lucrative than many initially expected.

Final thoughts on Minnesota cannabis licensing

Acquiring a Minnesota cannabis license is within reach for motivated parties who can follow basic protocols, marshal resources, and roll with the ongoing changes—many of which are designed to bolster the program. This market is beginning to mature and still holds significant promise. Call us if you are sizing up an opportunity.

The post How to Acquire a Minnesota Cannabis License appeared first on Harris Sliwoski LLP.

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