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On September 9th, the United States Court of Appeals for the District of Columbia denied a motion to stay filed by SAM, Inc. and the National Drug and Alcohol Screening Association, Inc. (collectively, “SAM”). The motion sought to stay (pause) the Attorney General’s final order placing state legal medical marijuana into Schedule III of the Controlled Substances Act (“CSA”). While this ruling merely maintains the status quo, it is still a significant victory for state legal medical marijuana operators.
This decision does not mean that medical marijuana will ultimately survive the litigation. What it does show, however, is that the Attorney General is likely to receive a fair hearing before the D.C. Circuit. Had the stay been granted, it would have been a devastating blow to the industry and almost certainly would have signaled defeat following a full hearing. The court’s decision, at least, suggests that it is taking the case seriously and considering the issues without prejudice.
Apparently, in an earlier blog post, I got the process backwards. I assumed the court would address standing first and then determine whether a stay was warranted. Instead, the court addressed the stay first, while standing will be addressed through the parties’ briefs.
Based on the court’s decision, this makes sense. Since the court denied the stay, there was no need to determine standing at this stage. Had the court granted the stay, standing likely would have needed to be addressed first and, given the outcome, presumably would have been established.
As I have discussed in several blog posts, but primarily in this one, I believe that standing is everything in this litigation. Despite the court’s denial of petitioners’ motion for a stay, I still believe that if petitioners are found to have standing, the Schedule III final order will ultimately be overturned. I hope I am wrong but based on a plain reading of 21 U.S.C. 811(d)(1) and some poor drafting in the final order, I do not see how the final order survives.
In its order, the court also denied the motion of two medical marijuana companies to intervene in the litigation. MedPharma Iowa, LLC and TriMountain Pure, LLC, through their attorney Shane Pennington, sought to intervene on the grounds that the Attorney General could not adequately represent the interests of businesses affected by the final order. They argued that medical marijuana operators should therefore have the opportunity to represent their own interests in the litigation.
The court ultimately denied the motion but is allowing the medical marijuana operators to participate as amici curiae. This is important because it will still allow the operators (i.e. Shane Pennington) to present their arguments for the court’s consideration.
The court also granted attorneys David Sergi, David Holland, Robert Hoban, and Tyson Daniel leave to participate as amici curiae.
The court set a 30-day deadline for the parties to submit proposed formats for briefing the cases. The court strongly urged SAM et al. (which includes SAM, the National Drug and Alcohol Screening Association, the states of Nebraska and Indiana, New Directions Addition Recovery Services, Elizabeth Stuyt, Cannabis Industry Victims Educating Litigators, MMJ International Inc., MJ BioPharma Cultivation Inc., MJ Biopharma Labs, Inc., and Kenneth Finn) to submit joint proposals, reminding the parties that “the court looks with extreme disfavor on repetitious submissions.”
The court further stated that it “will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief.” If Sam et al. believe separate briefs are necessary, they “must provide detailed justifications for any request to file separate briefs or to exceed in the aggregate the standard word allotment.”
After reviewing the parties’ proposed briefing formats, the court will set a briefing schedule. D.C. Circuit Rule 31 provides that SAM et al. must then file and serve their initial brief within 40 days. The Justice Department will then have 30 days to file its response brief. Finally, Sam et al. will then have 21 days to file and serve their reply brief.
Importantly, all of these timeframes remain subject to the court’s discretion. The court can expedite or extend the filing deadlines as it deems appropriate. Assuming no changes to these timelines and that the court issues a briefing schedule quickly, the timeline could look something like this.
Typically, the final brief, which in this case would be SAM’s reply brief, will be due at least 45 days before oral argument. Assuming the timeline above, oral argument could occur around late February or early March 2027.
That means we may not know whether medical marijuana survives this challenge until at least March 2027. Assuming DEA sticks to its six-month goal for processing applications submitted during the early application period, those registrations could start being issued next month. Once DEA registrations are issued, the program becomes operational, making a reversal that much more disruptive. That is not to say the court would consider those practical consequences dispositive, but they are important realities.
Because it appears the DEA registration program will become operational before the litigation concludes, licensed operators should be very careful about how they proceed and what language they include in their contracts. If the final order is overturned next year, any agreement involving interstate or international trade under the new framework may need to cease immediately upon the court issuing its order. If the final order survives, however, operators that begin operations quickly could secure a meaningful first mover advantage.
If you are an operator that submitted a DEA registration and would like guidance on how best to proceed, our international attorneys are here to help. Please do not hesitate to reach out for a free consultation.
For more on marijuana rescheduling and the DEA rulemaking process, please check out these recent posts:
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Colorado regulates marijuana businesses through the state Marijuana Enforcement Division (MED), while local jurisdictions retain separate licensing and regulatory authority over marijuana businesses within their boundaries. The current Colorado Marijuana Rules are codified at 1 CCR 212-3 (version effective January 5, 2026). Because state rules, forms, fee schedules, and local ordinances can change, applicants should confirm relevant requirements before filing or closing a transaction.
The MED administers Colorado’s state marijuana licensing framework under the Colorado Marijuana Code and the Colorado Marijuana Rules. A regulated marijuana business may not operate until it has the state and local approvals or licenses required for its business and location. Colorado’s rules expressly condition state business licensing on relevant local approval. The also allow local jurisdictions to impose separate requirements concerning the time, place, and manner of marijuana businesses.
Colorado maintains medical and retail marijuana business license categories that include stores, cultivation facilities, products manufacturers, testing facilities, transporters, and retail business operators. Colorado also recognizes a medical marijuana research and development facility license, and retail hospitality license types--including marijuana hospitality businesses and retail marijuana hospitality and sales businesses. In addition, Colorado’s licensing framework includes accelerator licenses associated with the social equity program. A separate state application is required for each license type.
Colorado law permits applications for regulated marijuana business licenses, but the availability of a particular license at a particular site depends in part on the local jurisdiction. Colorado rules allow a local jurisdiction to prohibit a regulated marijuana business license type, or to impose separate local licensing requirements. Accordingly, an applicant should confirm that the proposed jurisdiction and premises can support the intended license before making substantial site or transaction commitments.
The MED’s Regulated Marijuana Business License Application is Form DR 8548. As of July 1, 2026, applicants can now file a unified application for identical controlling beneficial owners who are applying for multiple licenses in the state.
The marijuana application requires disclosure information, a main application, authorization forms, and an affirmation of reasonable care, with additional addenda required for specified applicant structures or license types. The application materials address ownership and investment categories that include controlling beneficial owners and, where applicable, passive beneficial owners, qualified institutional investors, qualified private funds, and other interests addressed by Colorado law and MED rules.
The MED may require additional information or documents to process and investigate an application. Applicants may not operate the regulated marijuana business before obtaining all necessary state and local approvals or licenses.
Colorado does not treat every investor, lender, fund, or economic participant in a marijuana business the same. The Colorado Marijuana Rules divide ownership and financial interests into categories that determine what must be disclosed and, in some cases, who must be licensed or found suitable.
What is a Controlling Beneficial Owner (CBO)? A Controlling Beneficial Owner generally includes a person or entity that, acting alone or in concert, owns or acquires at least 10% of the owner’s interest in a regulated marijuana business; an affiliate that controls the business, including a manager; or another person or entity that is otherwise in a position to control the business. A Qualified Institutional Investor is generally treated as a CBO only when it owns or acquires more than 30% of the owner’s interest. CBO status is important because controlling beneficial owners are subject to the owner-licensing and disclosure framework in the MED rules.
What is a Passive Beneficial Owner (PBO)? A Passive Beneficial Owner is a person or entity that holds an ownership interest below the controlling-beneficial-owner threshold and is not otherwise in a position to control the regulated marijuana business. The rules distinguish passive ownership from control, but PBOs remain within the regulatory ownership framework and may be subject to disclosure or additional MED review, including reasonable-cause disclosure.
What is a Qualified Institutional Investor (QII)? A Qualified Institutional Investor is a specifically defined institutional investor, including certain regulated banks, bank holding companies, insurance companies, registered investment companies, employee benefit or pension plans, government pension plans, and qualifying groups of such institutions. The QII category matters because Colorado applies a different controlling-ownership threshold and disclosure treatment to qualifying institutional investors.
What is a Qualified Private Fund (QPF)? A Qualified Private Fund is generally a private investment fund that would be an investment company under the federal Investment Company Act of 1940 but for the exclusions in sections 3(c)(1) or 3(c)(7), is advised or managed by a properly registered investment adviser, and satisfies the additional requirements stated in the Colorado Marijuana Rules. When a QPF is a controlling beneficial owner, the MED requires organizational disclosure concerning persons who control the fund’s investment in, or management or operations of, the marijuana business.
What is an Indirect Financial Interest Holder (IFIH)? An Indirect Financial Interest Holder is a person with a financial or economic relationship to the regulated marijuana business who is not an affiliate, CBO, or PBO. The category can encompass specified debt, commercially reasonable royalties associated with intellectual property, and other economic arrangements recognized by the rules. Certain IFIHs receive heightened disclosure treatment, including a person who holds two or more indirect financial interests, is also a PBO, or provides previously undisclosed debt financing exceeding 50% of the business’s operating capital.
Why do these categories matter in an application or acquisition? The classification affects the scope of the MED’s disclosure, licensing, and suitability review. Colorado requires specified disclosures for controlling beneficial owners and certain indirect financial interest holders and authorizes additional disclosure of specified owners, affiliates, and financial interests. Applicants should therefore analyze not only the cap table, but also management and control rights, financing, royalties, fund structures, and other economic arrangements before filing or closing a change-of-ownership transaction.
Colorado’s rules use findings of suitability as part of the licensing and ownership-review process for persons and entities that fall within specified ownership or investment categories. Controlling beneficial owners are subject to the owner-licensing requirements in the Colorado Marijuana Rules, and passive beneficial owners may elect or be required in specified circumstances to be subject to disclosure or licensure. Suitability and owner-license requirements therefore depend on the person’s or entity’s status under the current ownership provisions rather than on a single ownership-percentage rule applied to every investor.
Local governments may impose licensing requirements separate from the MED’s state process. Those local requirements may address the proposed premises, zoning or land use, local application materials, inspections, hearings, and other locally imposed licensing conditions. In Denver, for example, the municipal code requires specified inspections and permits before issuance of a local marijuana license and requires a corresponding state license.
Colorado distinguishes Owner Licenses and Employee Licenses, and the rules provide for identification badges associated with those licenses. A natural person who is required by the rules to obtain an Employee License must obtain that license before beginning activities that require an Employee License. Controlling beneficial owners are subject to the Owner License provisions of the rules, while the required credential for any particular individual depends on that person’s ownership and operational role. The MED uses Form DR 8517 for the Marijuana Employee License Application.
Colorado does not impose one uniform state application-and-license fee across all regulated marijuana business license types. The current Colorado Marijuana Rules contain separate fee schedules by license category, and cultivation fees vary by tier or class. Under the current rules, the first payment is submitted with the application and the second payment is generally due at least twelve months before the license expiration date. Local jurisdictions may charge additional application, license, transfer, change-of-location, or other fees under local law.
Senate Bill 24-076, which became law in 2024, extended initial state regulated-marijuana business license and renewal periods from one year to two years. The legislation permits local licensing authorities to determine whether local licenses are issued for one-year or two-year terms.
The cited state materials do not establish a universal processing period for every new regulated marijuana business license. The application process requires state review, local approval, ownership and suitability review, payment of applicable fees, and satisfaction of premises-specific local requirements. A transaction timetable should therefore be based on the particular license type, ownership structure, premises, and local jurisdiction rather than on a single statewide processing estimate.
Denver’s municipal code reserves applications for specified new marijuana business licenses to social equity applicants, subject to stated exceptions. The current Denver code provides that this social-equity exclusivity provision is repealed effective July 1, 2027. Denver separately imposes a moratorium on applications for new medical marijuana store and new medical marijuana cultivation facility licenses. Denver’s code also contains proximity, location, hearing, inspection, permit, and other local requirements that can affect whether a proposed premises is licensable.
Denver permits transfers of marijuana business ownership subject to approval by the local licensing authority and the requirements of its municipal code.
Before July 1, 2027, a license held by a social equity applicant may be transferred to social-equity or non-social-equity applicants only if at least fifty-one percent of the license remains held by one or more social equity applicants. A non-social equity applicant, however, may transfer its license to a non-social equity applicant without any additional social equity restrictions.
After July 1, 2027, Denver’s code states that licenses held by social equity applicants may be transferred to social-equity or non-social-equity applicants upon approval by the manager. A purchaser should therefore determine whether the target license is subject to Denver’s social-equity transfer restriction before structuring the acquisition.
The current Colorado Marijuana Rules implement the statutory social-equity framework and require applicants to establish qualification under the criteria applicable to their application. The rules include evidentiary provisions addressing qualification based on residence during the relevant period, receipt of specified government assistance, and marijuana-related arrests or convictions involving the applicant or specified family members. The rules also contain ownership requirements applicable to regulated marijuana businesses held by social equity licensees. Because those criteria have been amended over time, applicants should ensure they are using the current version of the rules and the current statutes rather than relying on older summaries of the program.
Yes. In fact, the MED just concluded a rulemaking session in preparation for a rule change. We will keep you posted on these changes when they are finalized and published.
A Colorado marijuana business must satisfy the state licensing framework and the requirements of the relevant local jurisdiction before operating. The applicable license type, ownership structure, individual-license requirements, fees, and local-site restrictions should be analyzed under the current MED rules and the current local code for the proposed premises. For Denver transactions, the social-equity exclusivity and transfer provisions remain applicable through a sunset date of July 1, 2027.
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Discover the strains that propelled Fast Buds to the winners circle at the 2026 Autoflower World Cup
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Earlier this week, the House passed a short-term funding bill that postpones the federal ban on hemp-derived THC products. President Trump signed the ban into law last year; it was scheduled to take effect November 12th. This Wednesday, however, Trump signed off on the Congressional extension, pushed by his Administration, which means the ban is now scheduled for December 11th.
The extension begs three primary questions for me. The first is whether Congress will pass legislation relevant to intoxicating hemp products (i.e. regulating them), prior to December 11th. The second is whether Congress will extend the deadline again, if legislation fails to coalesce. The third is whether enforcement will follow, if a ban takes effect. I’ll answer these and a few more in FAQ format.
We hear a lot of scuttlebutt from Capitol Hill and industry players on this topic. The general sentiment is that comprehensive legislation to regulate intoxicating hemp products is unlikely to coalesce prior to December 11th. There are just too many disparate interests, too many ideas, and not enough time.
That conclusion was buttressed for me yesterday morning, when Speaker Johnson announced cancellation of all votes for the last two weeks of September. This leaves a very small window before midterms. After midterms, things become even less certain.
Note: the current composition of Congress fully supported the ban, and hardline conservatives have vocally supported it. If Democrats take majorities, we may see a more “regulated market” approach.
This is possible. The Trump Administration has signaled that it will not seek another extension beyond December 11. The Administration had also talked of implementing regulations over the extension period, for whatever it’s worth. More recently, we’ve heard talk of a second extension to the ban, through March. Again, much depends on the midterms.
The primary beneficiaries are going to be sellers of unregulated, intoxicating hemp products, from Trump aides on down. Our impression is that many operators in the space aren’t planning carefully, or planning much at all. It’s also fair to say that a lot of hemp products sellers will keep doing whatever they’re doing, or attempt to, regardless of any federal law.
State-legal cannabis sellers are on the other side of this equation, which is a complicating policy factor—including for proponents of an “agnostic” or “one source” bill. The sale of intoxicating hemp products in adult-use cannabis states, including at gas stations etc., competes with these regulated businesses’ sales.
The alcohol lobby is another complicating factor. Major drink producers are pushing to restrict or ban hemp-derived beverages, while wholesalers and retailers would like to see regulation. All of these competing interests, plus the confusion around cannabis regulation more generally, create a true morass.
I wrote a piece about this last December, after the first ban was scheduled. In relevant part, I opined:
At the federal level, I wouldn’t expect a coordinated crackdown by DEA and U.S. attorneys. That would be too expensive, too unwieldy. Instead, I think targeted enforcement of select larger players—perhaps including warning letters next summer—is the most likely path. In that scenario, the chilling effect I mentioned for service providers would be magnified, and it’s likely that many operators would also stand down.
I also think states will continue to get on the prohibition bandwagon, as I explained to MJ BizDaily last month. Some already are, but you’d see more of this in an environment where the feds throw their backs into it, enforcement-wise, and where de jure prohibition is not the whole picture.
I don’t have much to add at this point, other than any business operating under perpetually looming bans, deadlines, enforcement threats, etc., is operating in a dicey milieu. The money must be good!
For a long time, I’ve been on record opposing intoxicating hemp products. This is not simply a public health objection to unregulated, chemically synthesized, frequently contaminated products (which are often for sale to minors). As a legal matter, our law firm concluded: 1) the “Farm Bill loophole” does not exist, 2) that most intoxicating hemp products are marijuana or other controlled substances, 3) that most of these products clearly violate the FD&C Act in addition to the Controlled Substances Act, and 4) that most states lack a regulatory framework for these sales (while others outright prohibit them.) I reiterate all of this here, as context for the opinions above.
I do continue to believe that we need a wholistic U.S. policy for the cannabis plant. As far as the pending ban on intoxicating hemp products and seed sales, let’s see what happens leading up to the midterms, and before December 11th.
__________
For related posts, check out the following:
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Your September 2026 horoscope invites a shift from summer's fast pace into a season of reflection, renewal, and intentional growth.
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It’s been a while since we wrote a round-up post on Oregon cannabis. Here are some items of note, as we head into the fall. Gather ‘round!
On August 19th, the Oregon Capital Chronicle ran an article featuring a renewed push by Sen. Lisa Reynolds (D-Portland) to cap individual edibles at 10 milligrams of THC. This would be a reprisal of failed Senate Bill 1548, which we covered in February at the start of the 2026 legislative session. SB 1548A passed the Oregon Senate, but died in the House Committee on Economic Development, Small Business and Trade, following industry opposition.
Related to the THC cap, SB 1548A contained newly restrictive packaging proposals (i.e., a requirement for individually packaged servings; added warnings). The packaging component likely did more damage to the bill’s chances than the actual serving limits, seeing as non-medical THC is already capped at 10mg THC/serving. As I explained in February, “the industry argument here is that cannabis packaging requirements generate tremendous waste, and are an affront to sustainability. It’s a good argument.”
It’s worth noting that SB 1548A contained an additional public health prong, restricting dispensary siting requirements. I wouldn’t be surprised to see this provision removed on re-introduction, because the big target here is serving limits. But it’s hard to say at this point. As I explained in March, “SB 1548A could always pop up again next session, as a stand-alone bill or in some other format.”
Reynolds did say that she will be hiring a lobbyist this time around. We’re also scheduled for a six-month session beginning in February (as opposed to the 35-day session of 2026), which means Reynolds’ proposal will get a real look.
Bottom line: this isn’t going away, and industry will need to gear up for another fight.
Portland’s Willamette Week ran a story on August 23rd, titled “Owner of La Mota Issued $7.9 million in liens.” The story describes five tax liens issued to Aaron Mitchell “and dozens of his LLCs” for unpaid taxes going back to 2020.
A client sent me this story, and asked how Mitchell and La Mota are still running around in the OLCC space. I directed him to what I wrote back in December of 2024: “The answer is simple: La Mota probably reached a deal on payment plan with the Department of Revenue.”
If those payment plans are also now in default, with liens assessed, the jig may finally be up for Mitchell and La Mota. Or, maybe not! According to a 2023 story in the same publication, by the same reporter, Michell, his partner “and the many companies they control have been issued over $1.8 million in tax liens in recent years by the state.”
Elsewhere, OLCC and DOR do continue to enforce the tax payment rules caused by the far-reaching La Mota scandal. That is to say, retailers must obtain a certificate of tax compliance in order to renew or transfer a license, showing they are current on state taxes or operating under an approved DOR payment plan.
Compliance Education Bulletin CE2-2601 takes effect next week, on September 1st, 2026. The bulletin defines a new CTS process for entering compliance test results in Metrc on secondary lab sample packages. This development succeeds from the 2024 crackdown on THC inflation and testing labs. (In all, we still have 10 licensed labs, down from 11 when this story broke.)
CE2-2601 is not a rule per se, but licensees need to comply with the bulletin. OLCC emphasizes that “failure to adhere to the new process after September 1, 2026 will result in missing test results for the source package.” No one wants that, obviously.
Two days ago, on August 26th, Oregon’ Chief Economist released the state’s Q3 Economic and Revenue Forecast. A key takeaway includes “marijuana forecast profile revised substantially,” and not for the better. The forecast includes a $14 million reduction in tax revenue in the current biennium (two-year period), as compared to last quarter’s forecast for the same period.
As I’ve highlighted in successive “State of the State” posts, marijuana sales revenues have dropped each year from 2022 to 2025. This means less tax collected. The state is predicting this trend will continue, with lower prices and stagnant demand. This means more squeeze on producers, which means more diversion activity, probably. It also means less money for schools, police, public health, cities and counties. We would love to see this trend reverse, or even just relent. There are no easy answers, unfortunately.
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