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More opinions on SCOTUS and cannabis

Plus, Delaware’s market opens in 2025

Monday, July 8, 2024

Good morning. 

We hope you had a wonderful time off for the Fourth. We certainly did.

If you missed it, check out our conversation last week with Matt Zorn, a partner at the law firm Yetter Coleman, about all things Chevron and rescheduling. Watch it on Cultivated’s YouTube channel.

-JB & CB 

This newsletter is 1084-words or about a 7-minute read.

💡What’s the big deal?

What does it all mean for cannabis?

What happened: Last week, we got wonky with SCOTUS and Chevron. 

The question on all of our minds (I’m sure yours too):

What does the Chevron Deference ruling mean for cannabis? 

We did our best to tackle this question in July 3’s newsletter. We’d also like to draw your attention to a few op-ed’s — that are all over the map — to give you a wider range of perspectives. 

  • Who: Shane Pennington, a partner in the Washington, D.C. office of Porter, Wright, Morris, and Arthur LLP, is a federal administrative law specialist. 

  • Their take: He argues that the Supreme Court’s recent overturning of the Chevron Deference doctrine will not hinder the rescheduling of cannabis to Schedule III.

    • Chevron required courts to defer to federal agencies’ interpretations of ambiguous statutes, but Loper Bright, the case argued before the Court, mandates independent judicial review. 

    • Pennington says agencies like the Department of Health and Human Services (HHS) and the Drug Enforcement Administration (DEA) will still receive significant respect for their interpretations due to Congressional delegation and international treaty obligations.

    • Therefore, he says the rescheduling process for cannabis remains robust and likely to succeed despite Chevron’s demise. 

  • Who: Matt Zorn, a partner at Yetter Coleman LP. 

  • Their take: He argues that the Supreme Court’s recent overturning of Chevron will not hinder the federal rescheduling of cannabis from Schedule I to Schedule III. 

    • Zorn believes the ruling removes previous DEA excuses for rejecting rescheduling petitions.

    • He explains that the HHS test for rescheduling, which relies on straightforward statutory text and scientific findings, is unaffected by Chevron’s demise. 

    • Zorn says that throwing out Chevron is mostly a “nothing-burger” for rescheduling in his On Drugs newsletter.

    • We also had Zorn on our Cultivated Live last week. Watch that here

  • Who: Deb Tharp is the head of legal and policy research at NuggMD, the largest telehealth platform for cannabis. 

  • Their take: She argues that the Supreme Court’s recent overturning of Chevron significantly hinders the rescheduling of cannabis to Schedule III. 

    • Without Chevron, she says regulations lack the same authority, leading to increased judicial scrutiny and uncertainty, which opponents can exploit to delay or halt rescheduling. 

    • Tharp highlights the chaos this creates for cannabis operators, as new regulations will face intense legal challenges. 

    • She suggests that Congress must take direct action to create clear laws and remove cannabis from the list of federally controlled substances, as relying on regulatory changes is inefficient at best and ineffective at worst. 

However, like Jeremy said last time, we don’t know what we don’t know. And only time will tell. 


🗣️ Quote of the day

“Who would have ever thought on their bingo card you’d end up with the vice president, the governor of Kentucky and Fat Joe at an event in the White House pushing for something that needs to happen?” Kentucky Governor Andy Beshear said about a March roundtable where he, Vice President Kamala Harris, and rapper Fat Joe heard from those who received federal marijuana pardons. 

When addressing speculation about his potential candidacy as a Democratic presidential ticket alternative, he highlighted his collaboration with the Veep on cannabis reform. Gov. Beshear emphasized his commitment to cannabis reform, including signing a medical cannabis legalization bill, protecting patients who possess medical cannabis, and encouraging marijuana clemency at the state level. Read more

Quick hits

More recalls for West Coast Cure 👋
California regulators have announced five more recalls of marijuana vape products from West Coast Cure due to banned pesticides, particularly chlorfenapyr. West Coast Cure emphasized their commitment to quality control and criticized the state's inconsistent testing standards. Read more

Delaware sends four bills to governor 📤
Rob Coupe, Delaware’s Marijuana Commissioner, said that the state’s recreational marijuana market is set to open in early 2025, following the passage of three new marijuana-related bills and cleanup legislation. Governor John Carney has yet to sign these bills into law. Read more

Maryland strong 💰
Maryland’s medical and adult-use cannabis sales have exceeded $1.1 billion in the first year following legalization, with adult-use sales contributing over $700 million and medical sales nearly $400 million. 

Minnesota hemp-derived also strong 💰
In the first year of Minnesota’s legal hemp-derived THC market, the state raised $10 million in tax revenue, although some believe this underrepresents the industry's true size.

Alabama delays ⏱️
An Alabama judge extended a temporary restraining order on issuing medical cannabis business licenses, further delaying the market’s launch. Read more

Arkansas is moving 🚂
Arkansas activists submitted 111,402 signatures to put a measure on the November ballot to expand the state’s medical program and potentially legalize recreational cannabis if the federal government does so. The proposal needs 90,704 valid signatures from 50 counties to qualify. Read more

North Carolina fails… again 🤦
For the third consecutive year, a proposal to legalize medical cannabis failed in the North Carolina Legislature due to Republican opposition in the House of Representatives, despite passing in the Senate. Read more.

😜 One fun thing

How have conspiracy theories played a significant role in the history of legalization in the US? 

Isaac Campos, a professor of history at the University of Cincinnati, discusses how many believe prohibition resulted from nefarious conspiracies, but argues this is an oversimplification. Read more.

📰 What we’re reading

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