Marijuana Moment
Federal health officials are asking a court to dismiss marijuana legalization opponents’ lawsuit challenging a new Trump administration initiative to cover up to $500 worth of hemp-derived products each year for eligible Medicare patients. The program being implemented by the Centers for Medicare & Medicaid Services (CMS) focuses largely on CBD but also allows a certain amount of THC in products.
Lawyers for Health and Human Services Sec. Robert F. Kennedy Jr. and CMS Director Mehmet Oz filed a brief on Thursday saying that the anti-cannabis organizations that filed the suit against the Medicare hemp coverage policy do not have standing to bring the case.
The prohibitionist groups, led by Smart Approaches to Marijuana (SAM), are “are unregulated parties in every sense” and CMS has “not required them to do or refrain from doing anything,” the government brief says, arguing that the plaintiffs have not actually been harmed by the policy.
Beyond the advocacy organizations, the case’s sole individual plaintiff is anti-marijuana lawyer David Evans, who claims he has standing to challenge the new Substance Access Beneficiary Engagement Incentive (BEI) as a Medicare recipient—but the federal agencies reject that argument.
“Mr. Evans opposes hemp products and will not use them. He says so himself,” the brief says. “No one will force Mr. Evans to consume a hemp product. No one will force his provider to offer him one. His alleged injury is thus not that the [Medicare hemp program] will cause him any physical, monetary, or regulatory harm. His alleged injury is that he might be offered a product he will decline. That is not an Article III injury. It is an offense to his sensibilities.”
“Plaintiffs are anti-cannabis advocacy organizations and one Medicare beneficiary. None participates in any Centers for Medicare and Medicaid Services (“CMS”) Innovation Center, also known as the Center for Medicare and Medicaid Innovation (“CMMI”), model. None administers the program they challenge. None faces any regulatory obligation from CMS. Their complaint is that CMS announced a voluntary component of existing models allowing willing providers to consult with consenting beneficiaries about eligible hemp products—and they object to it. Under [Supreme Court precedent], objection is not injury.
The individual Plaintiff, David Evans, receives care from an ACO REACH participant. He opposes hemp products and says he would never use them. His claimed injury is that his provider might someday elect a voluntary program, might someday offer him a product, and he might be upset. That chain of contingencies is not Article III standing. It is speculation about the independent choices of third parties who are not before this Court.”
The government also rejects the groups’ claims that they have standing to sue because are being forced to waste resources opposing the Medicare hemp initiative that they would otherwise allocate toward fighting reforms like marijuana legalization and federal rescheduling.
“Every organizational Plaintiff exists to oppose cannabis access. The BEI did not divert these organizations from some unrelated core activity. It gave them exactly the kind of government action they exist to oppose,” the federal brief says. “Their expenditure of resources to oppose it is the execution of their organizational missions, not a diversion from them.”
