Massachusetts cannabis businesses challenge constitutionality of federal drug laws

The legal landscape for state-regulated marijuana markets has changed dramatically since the U.S. Supreme Court last weighed in on the issue in 2005.

A group of Massachusetts weed businesses have filed a lawsuit seeking to bar the government from enforcing federal drug laws against state-regulated cannabis companies.

They’re represented by the powerhouse law firm of David Boies, best known for high-profile litigation seeking the breakup of Microsoft, representing former Vice President Al Gore in the contested 2000 presidential election and defending disgraced movie mogul Harvey Weinstein.

The legal landscape for state-regulated marijuana markets has changed dramatically since the U.S. Supreme Court last weighed in on the issue in 2005, when it ruled against medical marijuana patients in California, even though the state’s legal market was limited to within its borders.

“What was once a single-minded federal crusade against the cannabis plant has been replaced with an ambivalent set of inconsistent policies, some aimed at reducing federal interference with state efforts to regulate marijuana,” the complaint states.

The plaintiffs: The lawsuit was filed by Canna Provisions, which has two dispensaries in the state, Gyasi Sellers, one of the earliest licensees in Massachusetts’ social equity program, cannabis cultivator Wiseacre Farm and Chicago-based Verano Holdings, which has cannabis operations in more than a dozen states.

Their argument: The cannabis companies outline a variety of ways that federal drug laws harm their businesses, including lack of access to financial services, punitive federal tax rates and an inability to secure federally subsidized grants and loans.

Times have changed, the plaintiffs argue, since the Supreme Court last weighed in on state-legal cannabis in 2005 with Gonzales v. Raich. At that time, the justices ruled that the federal government can crack down on state-legal medical marijuana patients because their actions bolstered the market for illicit marijuana.

They further argue the federal government has abandoned efforts to “eradicate” marijuana with Congress’ appropriations riders preventing enforcement of federal drug laws against state medical marijuana programs, as well as Justice Department policies of non-enforcement in state-legal cannabis markets.

The 38 state-regulated marijuana markets have contributed to a decline in the illicit marijuana trade, the complaint says.

“From 2012 to 2022, the amount of illicit marijuana seized by U.S. Customs and Border Protection declined by almost 95 [percent],” according to the complaint. “Marijuana consumers are getting their marijuana less and less from the interstate channels that Congress sought to prohibit, and more from regulated intrastate retailers.”

Furthermore, cannabis products available on Massachusetts’ regulated market are distinguishable from illicit cannabis, the complaint argues, thanks to the state’s stringent regulations on lab testing and seed-to-sale tracking.

What they want: The plaintiffs are asking the court to declare that the Controlled Substances Act is unconstitutional as applied to state-regulated marijuana markets and to block the federal government from enforcing the federal drug law that’s been on the books since 1970.

More context: Since Gonzales v. Raich, various attempts have been made to use federal courts to push back on federal drug laws. But none have been filed by such a high-profile law firm.