The U.S. Department of Justice is urging a federal appeals court to reject an attempt to pause an order that moved certain marijuana products from Schedule I to Schedule III under the Controlled Substances Act.
In a brief filed Thursday with the U.S. Court of Appeals for the D.C. Circuit, DOJ argued that the challengers “come nowhere near” meeting the standard required for a stay while the case proceeds.
The case centers on Attorney General Order No. 6754-2026, issued in April by Acting Attorney General Todd Blanche. The order placed two categories of marijuana in Schedule III: marijuana contained in FDA-approved products and marijuana subject to qualifying state-issued medical marijuana licenses.
The filing comes in consolidated cases brought by Smart Approaches to Marijuana, the National Drug and Alcohol Screening Association, New Directions Addiction Recovery Services, MMJ International Holdings and others. However, DOJ said the pending stay request is being pursued by NDASA and MMJ-related petitioners.
Those petitioners argue the order was procedurally unlawful because the government did not go through formal rulemaking or notice-and-comment procedures before issuing it. DOJ rejected that argument, saying the Controlled Substances Act allows the attorney general to issue an order under 21 U.S.C. § 811(d) when control of a substance is required to comply with international treaty obligations.
DOJ said marijuana remains subject to the Single Convention on Narcotic Drugs, but that the department has already concluded the United States can satisfy its treaty obligations with marijuana in Schedule III. The filing also points to the Department of Health and Human Services’ 2023 recommendation that marijuana be moved to Schedule III.
“Accordingly, under 21 U.S.C. § 811(d), the Acting Attorney General was authorized to issue the scheduling order ‘without regard to the referral and hearing procedures’” normally required under other parts of the CSA, DOJ argued.
The department also said the challengers have not shown they have standing to bring the case.
For NDASA, which represents drug-testing interests, DOJ argued that the organization offered only “generalized speculation” about how the order may affect the industry, rather than identifying a specific member who has suffered a concrete injury.
For MMJ, which is developing cannabinoid-based pharmaceutical products, DOJ said the company cannot claim competitive harm because it does not yet have an authorized product on the market. DOJ noted that MMJ has investigational new drug applications pending with FDA, but has not completed the clinical trial process.
DOJ further argued that the alleged harms raised by the petitioners fall outside the purpose of the Controlled Substances Act. The department said the law was enacted to protect public health, prevent drug abuse and regulate controlled substances for legitimate medical and scientific purposes, not to guarantee revenue for drug screeners or protect future “market opportunities” for cannabinoid-based pharmaceuticals.
“Congress enacted the CSA to ensure the proper regulation of substances for research and medical use—it did not enact the CSA to provide drug screeners with a permanent source of income for testing marijuana, nor did it enact the law to protect ‘market opportunities’ for the creation of ‘cannabinoid-based drugs,’” DOJ wrote.
The filing also argues that the petitioners failed to show irreparable harm. DOJ said NDASA’s claims about lost revenue and higher compliance costs are speculative, while MMJ’s claims are based on a future competitive position that has not yet materialized.
The government said pausing the order would interfere with the attorney general’s effort to administer the CSA consistent with U.S. treaty obligations. DOJ also noted that 40 states have already legalized marijuana for medical purposes, arguing there is no basis to conclude the limited rescheduling order would materially increase the harms cited by petitioners while the case is pending.
The April order is separate from the broader marijuana rescheduling process now underway at DEA. That administrative hearing began June 29 and is scheduled to conclude by July 15. That process could determine whether marijuana more broadly is moved from Schedule I to Schedule III.
DOJ is asking the D.C. Circuit to deny the motion for a stay pending review.
