Massachusetts Cannabis Business Owners’ Lawsuit Against the U.S. Government Continues

The saga continues for four Massachusetts-based business owners who filed a lawsuit against the U.S. Justice Department in an attempt to overturn cannabis prohibition.

The plaintiffs include owners of Canna Provisions, Inc., Gyasi Sellers, Wiseacre Farm, Inc., and Verano Holdings Corp., who are represented by David Boies and Josh Schiller of Bois Schiller Flexner LLP. The lawsuit was first issued in October 2023, and used the results of a court case from 2005, Gonzales v. Raich, to showcase how federal prohibition of cannabis is outdated. “The federal criminal prohibition on intrastate marijuana remains in place, an unjustified vestige of a long-abandoned policy,” the lawsuit states. “This unjustified intrusion of federal power harms Plaintiffs, threatens the communities they serve, and lacks any rational purpose.”

According to a news report published by The Boston Globe, U.S. Attorney General Merrick Garland filed a motion to dismiss the case on Jan. 23, stating that the plaintiffs have no standing on which to sue, and have presented no evidence that prohibition has caused them injury (such as being arrested or prosecuted). The motion stated that “Even if the court were free to disregard Raich ’s holdings (it is not), Plaintiff’s attacks on that holding are unpersuasive,” that the “Plaintiffs lack standing to challenge the CSA [Controlled Substances Act],” and “Courts have consistently, and correctly, held that no fundamental right exists to distribute, possess, or use marijuana.”

The Boston Globe noted that the Department of Justice declined to comment, as of Jan. 29.

In defense of the business owners, Schiller described how there is evidence that the longstanding illegality of cannabis from a federal standpoint is “well-established.” Schiller cited examples such as cannabis businesses being heavily taxed, forced to pay insurance premiums, cannot take credit cards as a form of payment, and usually pay a higher price for rent or mortgages, “Almost like they are illegal businesses.”

James Smith, of Smith, Costello, & Crawford, commented on the lawsuit and told The Boston Globe that winning a case like this one is a “high hill to climb.” Even still, Smith described Massachusetts’ regulatory framework for legalization as “pretty pristine.” The federal government has yet to make a move on federal legalization and has made no constructive decisions regarding major industry issues, such as banking. Smith added that with a lack of action from the federal government, that leaves state legislators to act—and courts are waiting for them to do so.

Another comment was provided by Boston University professor and author, Jay Wexler, who told the news outlet that if legislators lose interest in regulating cannabis federally, then expecting the federal government to take on the role of cannabis business in all states “falls apart.” Wexler also stated that this current case could eventually reach the Supreme Court. “These are cases where plaintiffs are aiming for the Supreme Court because there are precedents,” said Wexler. “It’s pretty unlikely that lower courts will feel comfortable agreeing with the plaintiffs.”

Schiller estimated that the lawsuit could take two years to reach a conclusion. But one of the plaintiffs, Gyasi Sellers, who owns a delivery service called Treevit, explained that it’s worth the wait. The opportunity to freely and legally take credit cards as a form of payment would improve his entire business, making delivery quicker and also maintaining a safe work environment for employees. Sellers described how prohibition would be “like getting our training wheels taken off, or our handcuffs taken off, depending on how you want to look at it. It’d be nice to say our fate is actually in our hands, and we have the ability to reach our true potential.”

The support for putting an end to prohibition continues to grow. Following the recommendation to move cannabis from a Schedule I to a Schedule III substance by the U.S. Department of Health and Human Services, the industry eagerly awaits the decision of the Drug Enforcement Administration. Meanwhile, multiple House representatives and Senators are calling out to President Biden to make a move as well.

In a High Times exclusive interview, New York Senator Kristen Gillibrand called for an end to prohibition. “Studies show that legalizing marijuana could help reduce violence in international drug trafficking and generate billions of dollars for the economy,” Gillibrand said. “The vast majority of Americans agree that marijuana should be legalized—that’s why I’m calling on the Attorney General and the Drug Enforcement Administration to swiftly deschedule marijuana from the Controlled Substances Act.”

Many predict that rescheduling cannabis could give Biden a huge boost in the upcoming election later this year. A survey conducted by Lake Research Partner showed that Biden could benefit from an 11% boost from younger voters (based on the opinions of 900 voters used in the survey, spread out across the U.S.).