This transcript has been auto-generated and may contain transcription errors.
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[Music]
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[Applause]
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welcome I'm your host Hillary Bricken and
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this is the Cannabis law Now podcast
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where we regularly discuss issues
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related to the Cannabis industry
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including investment day-to-day
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operational issues and potential reform
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on the horizon that will impact all
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cannabis businesses and investors in the
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United
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States hey everybody Welcome to the
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podast
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today with us we have a very exciting
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guest that I was super glad to net with
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his very busy litigation schedule we
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have Josh Shiller from boy Schiller
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flexner LLP and if you haven't heard of
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this Law Firm you've probably been
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living under a rock but Josh in
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particular is very interesting to me
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because he's about to do huge things in
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cannabis if they've not already been
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accomplished with this filing but Josh
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is admitted in New York and California
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he's a seasoned trial attorney he
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litigates all sorts of civil matters in
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the US and abroad and this is why he's
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on today because he's one of the lawyers
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doing the Lord's work representing
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plaintiffs in the can of Provisions Inc
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at all versus Garland case and this case
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is important and super notable because
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it is the most recent I think legitimate
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constitutional challenge against the
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feds regarding essentially the fate of
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cannabis on the Controlled Substances
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Act and it was filed in October of 2023
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so welcome Josh so happy to have you
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thank you very much Hillary for that
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wonderful introduction it's nice to be
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okay great and for the benefit of our
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audience I'm just going to launch right
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into these substantive questions
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appreciate you talking about it with me
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feel free to add anything else off the
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script from these questions if you want
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to okay just so everybody knows out
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there what are the basic claims in this
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lawsuit so the the lawsuit is based upon
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the Constitutional Powers invested in
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both federal government and the states
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as the Constitution was originally set
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up the federal government has limited
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power to enforce Commerce in the United
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States when that Commerce involves
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transactions that are considered to be
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interstate commerce and Interstate means
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Commerce that travels amongst or between
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the states the the Federal Constitution
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does not give our federal government the
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power to regulate in trust State
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Commerce meaning Commerce that is
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entirely within a state now there was a
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challenge uh back in the early 2000s
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based upon the bush administration's
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what I like to call the last Act of the
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War on Drugs when the Bush
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Administration decided when I was in law
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school to start raiding medical
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marijuana um growers in and I say
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Growers because they literally went in
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and threw a woman in jail who had 12
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pots and to treat her glaucoma in
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Oakland but they made a big point about
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shutting down the California lawful
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intrastate market for cannabis or
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marijuana I like to use the word
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marijuana it's a little more narrow than
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cannabis but cannabis obviously has all
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kinds of medicial uses but you know the
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Supreme Court heard that case and and
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it's called gonzale v r and determined
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that on the basis that the the federal
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government's policy at the time and I
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say at the time because it's a key
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factor in in the way we've written our
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complaint was to use their commerce
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power to eradicate cannabis or marijuana
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throughout the entire country from what
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they described as a black market for
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marijuana and so if they were to allow
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entirely inate Market to exist lawfully
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under state law they still had concerns
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that that cannabis would make its way to
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other states and to Black markets and so
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the court in a in a decision that was
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criticized quite strongly at the time by
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Justice Thomas and was joined
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interestingly Enough by some liberals
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and and some conservatives but I say
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that only because we have a very
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different court now but they determined
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that it was a lawful use of the federal
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government's power to enforce that
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policy it was a legitimate use in other
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words now ever since then cannabis has
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not gone away the federal government has
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taken steps rather to eradicate it but
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to make it more lawful more accessible
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and to to to take away its own power in
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what Justice Thomas recently described a
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few years ago in a descent in a
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prosecution in Florida an appeal from a
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prosecution saying that Federal
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government's policy these days is half
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in and half out and that's not a
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legitimate use of the federal Commerce
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Clause power and so what we've tried to
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do in our complaint is illustrate that
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with with facts and and when we get to
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summary judgment assuming we get to
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summary judgment we will be putting
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forth evidence to show that the federal
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government's policy ever since that
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decision has been inconsistent that the
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federal government is allowing these
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businesses to lawfully operate
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interestate without any concerns about
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this so-called black market for cannabis
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and in fact we'll also introduce
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evidence as we collect it to demonstrate
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that the Black Market has been armed if
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not reduced by the availability of safe
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regulated marijuana products in almost
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38 States at this point fantastic I love
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the complaint by the way um as soon as I
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saw the filing I grabbed it because I
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think lawyers that have been in the
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industry are very concerned about
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differentiating it from Gonzalez versus
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ra well we'll talk about that um towards
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the end but another question just on the
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technicalities especially for folks lay
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people not attorneys that are listening
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to this podcast what relief are these
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plaintiffs seeking and if you could talk
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a little bit about the plaintiffs what
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are they are they retailers uh where are
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they located that kind of thing well as
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you can tell we took a lot of time in
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thought and care and putting it into
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this complaint and when we started
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working on this case about a year and a
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half ago we looked at a couple of
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States because we wanted to understand
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how the lawful interestate Market Place
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was working and you know we were
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primarily being brought concerns from
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the industry concerns that I'm sure your
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clients have expressed to you the
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discriminatory taxes they face under 28e
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the unequal treatment they face in
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getting insurance policies and having to
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employ extra security and having to
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mostly be cash operated businesses you
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know top to bottom getting mortgages
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getting small business loans the normal
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things that small businesses in America
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depend upon that our federal government
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subsidizes and uses well I mean tax is
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not a subsidy but it's a penalty as
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these companies face it we knew what the
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concerns were but we wanted to look at
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the case from a and deconstruct it and
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say where is a good example of an
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interestate Market that is lawfully run
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that is well regulated where we can
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demonstrate people as examples of this
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growing entrepreneurial American
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industry and we ultimately decided on
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the Western District of Massachusetts
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because we had a number of reasons we
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wanted to use Massachusetts as an
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example you know it's not the most
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recent state but it's been around for a
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while it took them a while to get their
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products regulated and on the shelves
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and they have a very strong lawful
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market and so we wanted to also take a
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slice of the industry and and show the
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court the different kinds of companies
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and how they're being affected and so we
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have a we have a distributor we have an
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MSO and we have a farmer we have an
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interesting aspect of different pieces
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of the industry I I like to say that
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each one of them tells their own
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entrepreneurial American story and each
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each one of them is able to demonstrate
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in different ways and in similar ways
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that the harms that they face in main
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not just starting their own their small
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businesses but maintaining them
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successfully you would ask me about the
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relief and the relief is to seek an
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injunction not to reclassify or
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declassify or tell the FDA what to do
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because we can't do that but we can ask
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a judge to say the the use of the
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Commerce Clause power as applied by the
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FDA as a schedule two drug and the use
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to enforce that against businesses that
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are otherwise lawfully operating inate
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is an unconstitutional exercise of the
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Commerce Clause power and therefore
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we'll have an injunction against it now
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that is very narrow and very limited it
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doesn't mean that the federal government
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can't still you know prevent interstate
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commerce it can't arrest truck drivers
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who are driving over borders it can
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still do that and I would maintain to
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you that after our case I mean I I think
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the federal government if we're
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successful will likely work towards a
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structure where they may decide
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ultimately to regulate marijuana or
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leave it entirely to the States but as
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long as they leave it entirely to the
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states the effect of our lawsuit should
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be to get rid of all of the penalties
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imposed by Federal Regulation and so
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while we're aiming to help folks in
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Massachusetts our goal really is to help
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everybody in the country who who is
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operating these businesses and investing
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in and federal penalties including the
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Draconian impact of 28 right right well
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that would be a a side effect it's not
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the the main target for this case but
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for those businesses who who want to
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know how to work to get the benefits of
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our case if we're successful you know we
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are talking to lots of clients since we
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filed in before about how to take
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administrative steps you know something
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I'm sure you're familiar with but the
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the process of a tax appeal is different
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because you can't bring a class action
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on behalf of taxpayers right they all
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have to exhaust their administrative
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remedies and appeal individually and so
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some businesses we've spoken with are
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already taking steps to do that
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anticipating or hoping that we win and I
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could see one of the effects of this
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case if we're successful ultimately is
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that there will be a number of companies
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that will be looking to the federal
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government for a very large tax refund
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and that would be a fun day in court if
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we get
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there I would wholeheartedly applaud
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that you know moving on um I think many
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people are not accustomed to just the
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length of litigation regardless of the
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subject matter what do you think the
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basic procedural timeline is here for
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this case and and personally what do you
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expect to happen in the District Court
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which ladies and gentlemen is the
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federal court where the initial filing
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takes place so we've agreed on a
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briefing schedule with the federal
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government this week and they are going
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to file either an answer to our
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00:09:40,800 --> 00:09:44,600
complaint or a motion to dismiss they
279
00:09:42,360 --> 00:09:46,440
haven't indicated yet on January 23rd
280
00:09:44,600 --> 00:09:48,360
and we'll respond to that in March and
281
00:09:46,440 --> 00:09:50,480
if it's a motion to dismiss it will be
282
00:09:48,360 --> 00:09:52,000
fully briefed by the first week of April
283
00:09:50,480 --> 00:09:53,440
and then there may be a hearing I would
284
00:09:52,000 --> 00:09:55,560
expect an oral argument in the hearing
285
00:09:53,440 --> 00:09:57,079
on that you know maybe as soon as May if
286
00:09:55,560 --> 00:09:58,720
that doesn't happen and they file an
287
00:09:57,079 --> 00:10:00,839
answer then what we would be seeking to
288
00:09:58,720 --> 00:10:02,519
do is is to go to summary judgment you
289
00:10:00,839 --> 00:10:03,959
know within a reasonable period of time
290
00:10:02,519 --> 00:10:05,880
and because this isn't a case where
291
00:10:03,959 --> 00:10:08,320
we're going to be taking depositions or
292
00:10:05,880 --> 00:10:10,120
we're going to be looking at emails this
293
00:10:08,320 --> 00:10:11,880
is really about the facts that I don't
294
00:10:10,120 --> 00:10:13,800
think are going to be in dispute what is
295
00:10:11,880 --> 00:10:15,800
the federal government doing now versus
296
00:10:13,800 --> 00:10:17,880
15 years ago and what are these states
297
00:10:15,800 --> 00:10:20,000
doing now versus 15 years ago and how
298
00:10:17,880 --> 00:10:21,480
are they lawfully regulating these
299
00:10:20,000 --> 00:10:23,120
businesses and how are these businesses
300
00:10:21,480 --> 00:10:24,440
benefiting their communities that's not
301
00:10:23,120 --> 00:10:27,040
going to be controversial stuff it's
302
00:10:24,440 --> 00:10:29,079
going to be simple a demonstration of
303
00:10:27,040 --> 00:10:30,760
what's going on in this industry and the
304
00:10:29,079 --> 00:10:32,480
Eder government will have a legal basis
305
00:10:30,760 --> 00:10:34,240
to argue against us but if if they
306
00:10:32,480 --> 00:10:36,079
answer and we we get to summary judgment
307
00:10:34,240 --> 00:10:38,000
you know this case could be decided next
308
00:10:36,079 --> 00:10:39,720
year that would be the FastTrack if a
309
00:10:38,000 --> 00:10:41,120
motion to dismiss is granted then we
310
00:10:39,720 --> 00:10:42,880
could be appealing that and that
311
00:10:41,120 --> 00:10:44,560
decision could be the vehicle that gets
312
00:10:42,880 --> 00:10:46,560
through the appell at courts although I
313
00:10:44,560 --> 00:10:48,040
would rather obviously have a summary
314
00:10:46,560 --> 00:10:49,720
judgment record because I think it's a
315
00:10:48,040 --> 00:10:51,600
better demonstration of the evidence
316
00:10:49,720 --> 00:10:53,360
obviously and it's more for the courts
317
00:10:51,600 --> 00:10:55,279
to consider but you know assuming that
318
00:10:53,360 --> 00:10:57,079
we get pass a motion to dismiss I still
319
00:10:55,279 --> 00:10:59,399
think that summary judgment next year is
320
00:10:57,079 --> 00:11:01,480
possible with the appeal the following
321
00:10:59,399 --> 00:11:03,560
year because either side will appeal
322
00:11:01,480 --> 00:11:05,560
either a victory for or against the
323
00:11:03,560 --> 00:11:07,480
injunctive relief that we're seeking and
324
00:11:05,560 --> 00:11:09,480
and so if we get to the a year and a
325
00:11:07,480 --> 00:11:11,399
half from now we're preparing for
326
00:11:09,480 --> 00:11:12,959
argument in the first Department I mean
327
00:11:11,399 --> 00:11:14,600
the first uh circuit and I think we've
328
00:11:12,959 --> 00:11:17,560
done very very well you know that's a
329
00:11:14,600 --> 00:11:19,680
relatively streamlined time frame for a
330
00:11:17,560 --> 00:11:21,959
federal case in litigation but I compare
331
00:11:19,680 --> 00:11:23,560
it in in some ways to the um the gay
332
00:11:21,959 --> 00:11:25,480
marriage and the marriage equality cases
333
00:11:23,560 --> 00:11:27,160
that we brought after Proposition 8
334
00:11:25,480 --> 00:11:29,079
which at that point in time the record
335
00:11:27,160 --> 00:11:30,880
was already made by the initial caseing
336
00:11:29,079 --> 00:11:32,839
California which depended heavily on a
337
00:11:30,880 --> 00:11:34,560
state court record that had been tried
338
00:11:32,839 --> 00:11:36,560
several years earlier but the government
339
00:11:34,560 --> 00:11:38,360
when we litigated that case agreed with
340
00:11:36,560 --> 00:11:40,519
us that those cases should proceed
341
00:11:38,360 --> 00:11:42,079
quickly to summary judgment you know I
342
00:11:40,519 --> 00:11:44,160
wouldn't be surprised if the government
343
00:11:42,079 --> 00:11:46,279
was was able to agree with us on on that
344
00:11:44,160 --> 00:11:48,040
issue here and and present you know
345
00:11:46,279 --> 00:11:50,440
their view of the facts and their view
346
00:11:48,040 --> 00:11:54,200
of the law it could be a very easy case
347
00:11:50,440 --> 00:11:56,000
to get to an argument okay and any
348
00:11:54,200 --> 00:11:58,040
personal feelings about what the
349
00:11:56,000 --> 00:11:59,320
District Court's going to do here on
350
00:11:58,040 --> 00:12:01,959
that motion practice whether it's a
351
00:11:59,320 --> 00:12:03,880
motion to dismiss or nsj well we're
352
00:12:01,959 --> 00:12:05,720
hopeful that the court will give us an
353
00:12:03,880 --> 00:12:08,079
opportunity to present the evidence at
354
00:12:05,720 --> 00:12:11,160
summary judgement and looking at the
355
00:12:08,079 --> 00:12:13,279
evidence will feel empowered to say you
356
00:12:11,160 --> 00:12:15,320
know this is a different case than the r
357
00:12:13,279 --> 00:12:17,040
v Gonzalez case for these reasons the
358
00:12:15,320 --> 00:12:19,399
federal government's policy isn't the
359
00:12:17,040 --> 00:12:21,920
same and I think if the court can get to
360
00:12:19,399 --> 00:12:23,959
where I am with that issue then the
361
00:12:21,920 --> 00:12:26,399
court can independently assess whether
362
00:12:23,959 --> 00:12:28,399
the policy is still being enforced in a
363
00:12:26,399 --> 00:12:31,279
legitimate and rational way because the
364
00:12:28,399 --> 00:12:33,360
impact of inate Commerce is quite strong
365
00:12:31,279 --> 00:12:35,240
you know and that Legacy of cases going
366
00:12:33,360 --> 00:12:37,360
back to the 1940s has always been
367
00:12:35,240 --> 00:12:39,279
something that legal Scholars like to
368
00:12:37,360 --> 00:12:40,600
debate the validity of because again you
369
00:12:39,279 --> 00:12:42,160
have to start with the principle that
370
00:12:40,600 --> 00:12:43,920
the federal government does not have the
371
00:12:42,160 --> 00:12:46,560
Constitutional authority to regulate
372
00:12:43,920 --> 00:12:48,760
interestate commerce and so why should
373
00:12:46,560 --> 00:12:50,720
that limited exception continue to be
374
00:12:48,760 --> 00:12:52,600
applied in this important and growing
375
00:12:50,720 --> 00:12:54,519
industry in America and if the court is
376
00:12:52,600 --> 00:12:56,639
able to consider that and the impact on
377
00:12:54,519 --> 00:12:58,160
its communities I think it could reach a
378
00:12:56,639 --> 00:12:59,560
different decision than the courts did
379
00:12:58,160 --> 00:13:01,920
in California
380
00:12:59,560 --> 00:13:03,720
fair enough fair enough now this is
381
00:13:01,920 --> 00:13:05,720
highly speculative but you've been there
382
00:13:03,720 --> 00:13:07,480
before do you think this has the chops
383
00:13:05,720 --> 00:13:10,399
to make it before The Supreme Court of
384
00:13:07,480 --> 00:13:12,680
the United States in a basically quasi
385
00:13:10,399 --> 00:13:14,440
Gonzalez versus ra 2.0 there would
386
00:13:12,680 --> 00:13:17,360
certainly be an argument for the court
387
00:13:14,440 --> 00:13:19,399
to hear this case if for example The
388
00:13:17,360 --> 00:13:21,120
District Court Andor the first
389
00:13:19,399 --> 00:13:23,040
Department sorry the first I keep saying
390
00:13:21,120 --> 00:13:25,160
that I'm a New York lawyer the first
391
00:13:23,040 --> 00:13:27,800
circuit takes our case and grants the
392
00:13:25,160 --> 00:13:29,720
injunction or upholds it then you know
393
00:13:27,800 --> 00:13:31,000
one could argue that there's a split
394
00:13:29,720 --> 00:13:34,399
between the Supreme Court's prior
395
00:13:31,000 --> 00:13:36,480
decision which is unusual right and the
396
00:13:34,399 --> 00:13:39,120
and the uh the circuit Court's decision
397
00:13:36,480 --> 00:13:41,839
but you know we think that this court
398
00:13:39,120 --> 00:13:44,040
which is ideologically run by a group of
399
00:13:41,839 --> 00:13:45,959
conservatives you know primarily but
400
00:13:44,040 --> 00:13:47,839
Justice Thomas has has been consistent
401
00:13:45,959 --> 00:13:50,240
on this issue and his criticism of that
402
00:13:47,839 --> 00:13:53,040
prior decision for 20 years and so we
403
00:13:50,240 --> 00:13:55,480
think we have his vote now is he able to
404
00:13:53,040 --> 00:13:57,240
get three others to vote to to hear the
405
00:13:55,480 --> 00:13:58,880
case I think he will be able to do that
406
00:13:57,240 --> 00:14:00,160
I think these kinds of issues are very
407
00:13:58,880 --> 00:14:02,199
important but also they're very
408
00:14:00,160 --> 00:14:04,839
interesting to Justice Gorsuch and I
409
00:14:02,199 --> 00:14:06,920
imagine to some of the other Federalists
410
00:14:04,839 --> 00:14:10,680
on the bench as well and you know
411
00:14:06,920 --> 00:14:11,920
talking about this 1940 precedent that
412
00:14:10,680 --> 00:14:13,560
all the lawyers know because they went
413
00:14:11,920 --> 00:14:15,279
to law school and I'm talking about
414
00:14:13,560 --> 00:14:17,399
wickard versus filburn and then of
415
00:14:15,279 --> 00:14:18,839
course Gonzalez F and what we got out of
416
00:14:17,399 --> 00:14:21,000
the ninth circuit and ultimately the
417
00:14:18,839 --> 00:14:23,680
Supreme Court can you give me maybe the
418
00:14:21,000 --> 00:14:27,759
top two or three biggest distinctions
419
00:14:23,680 --> 00:14:29,360
between Gonzalez versus re and now so in
420
00:14:27,759 --> 00:14:30,839
Wicker is a case that lawyers are
421
00:14:29,360 --> 00:14:32,240
familiar with it's very controversial
422
00:14:30,839 --> 00:14:34,399
and fun to debate when you're a young
423
00:14:32,240 --> 00:14:36,560
lawyer studying the Constitution that
424
00:14:34,399 --> 00:14:39,199
said that you know a farmer in the
425
00:14:36,560 --> 00:14:40,759
midwest wasn't allowed to use the wheat
426
00:14:39,199 --> 00:14:43,399
he grew on his property for his own
427
00:14:40,759 --> 00:14:45,639
personal use and consumption during a
428
00:14:43,399 --> 00:14:47,800
crisis that the government determined
429
00:14:45,639 --> 00:14:49,519
was necessary a wheat pricing crisis
430
00:14:47,800 --> 00:14:51,120
that caused the government to say we're
431
00:14:49,519 --> 00:14:53,240
going to limit every farmer in America
432
00:14:51,120 --> 00:14:54,920
to 20 bushels of wheat you know I'm sure
433
00:14:53,240 --> 00:14:56,959
that decision seemed very unfair to that
434
00:14:54,920 --> 00:14:59,079
farmer now as it does today to many
435
00:14:56,959 --> 00:15:00,120
people who look at the limited power of
436
00:14:59,079 --> 00:15:02,079
the federal government under our
437
00:15:00,120 --> 00:15:03,680
constitution what I've said consistently
438
00:15:02,079 --> 00:15:05,600
is we're not trying to overturn any
439
00:15:03,680 --> 00:15:08,360
precedent we're just trying to get the
440
00:15:05,600 --> 00:15:10,079
court to examine the current policy and
441
00:15:08,360 --> 00:15:11,440
I think although I'm not familiar with
442
00:15:10,079 --> 00:15:13,199
too many cases where the federal
443
00:15:11,440 --> 00:15:15,519
government's policy has changed so
444
00:15:13,199 --> 00:15:17,360
dramatically over time that a case has
445
00:15:15,519 --> 00:15:19,440
been you know reconsidered or considered
446
00:15:17,360 --> 00:15:21,639
in a different way you know one of the
447
00:15:19,440 --> 00:15:23,800
arguments that I think we have strong
448
00:15:21,639 --> 00:15:26,079
ability to present as a factual record
449
00:15:23,800 --> 00:15:28,279
they said all wheat is the same it's a
450
00:15:26,079 --> 00:15:31,240
fungible commodity whether you buy wheat
451
00:15:28,279 --> 00:15:32,880
in Oregon or Arizona or Wisconsin it's
452
00:15:31,240 --> 00:15:35,160
all the same and you know I think they
453
00:15:32,880 --> 00:15:37,199
were right about that on the other hand
454
00:15:35,160 --> 00:15:38,920
they reached the same conclusion that
455
00:15:37,199 --> 00:15:41,319
all marijuana is the same and it's a
456
00:15:38,920 --> 00:15:43,560
fungible product when they ruled against
457
00:15:41,319 --> 00:15:46,319
the medical marijuana industry in
458
00:15:43,560 --> 00:15:48,079
California early 2000s I think the
459
00:15:46,319 --> 00:15:49,680
industry has changed a lot I mean all
460
00:15:48,079 --> 00:15:51,600
you have to do is go into one of these
461
00:15:49,680 --> 00:15:53,639
stores today and see all of the
462
00:15:51,600 --> 00:15:55,199
different kinds of medicinal products
463
00:15:53,639 --> 00:15:57,519
that that are there whether it's a
464
00:15:55,199 --> 00:16:00,639
retail store or a medical facility there
465
00:15:57,519 --> 00:16:03,920
are gummies for sleep in there are um
466
00:16:00,639 --> 00:16:06,240
vaporizer devices of All Sorts there are
467
00:16:03,920 --> 00:16:07,639
potato chips I mean there's lots of
468
00:16:06,240 --> 00:16:09,519
things I'm never going to try in these
469
00:16:07,639 --> 00:16:11,319
stores but there there are unique
470
00:16:09,519 --> 00:16:13,399
products in each state and they're very
471
00:16:11,319 --> 00:16:14,880
different the marijuana you buy in
472
00:16:13,399 --> 00:16:17,160
California it's very different than the
473
00:16:14,880 --> 00:16:18,680
marijuana you buy in Massachusetts and
474
00:16:17,160 --> 00:16:21,000
and that's a good thing it's like wine
475
00:16:18,680 --> 00:16:23,639
in a way it deres its strength its
476
00:16:21,000 --> 00:16:25,399
potency and its flavors and effects in
477
00:16:23,639 --> 00:16:27,120
part from the dirt where it's grown and
478
00:16:25,399 --> 00:16:29,680
so that's one way we can distinguish
479
00:16:27,120 --> 00:16:32,279
that those two prior cases but uh
480
00:16:29,680 --> 00:16:34,639
ultimately our focus is really on the
481
00:16:32,279 --> 00:16:36,360
use of the power okay was the Federal
482
00:16:34,639 --> 00:16:38,720
government's protection of pricing of
483
00:16:36,360 --> 00:16:39,839
wheat legitimate at the time you know I
484
00:16:38,720 --> 00:16:41,639
don't think we need to go back and
485
00:16:39,839 --> 00:16:43,720
debate that issue but at least at the
486
00:16:41,639 --> 00:16:45,800
time it was recognized it was important
487
00:16:43,720 --> 00:16:47,519
because they thought if some farmers are
488
00:16:45,800 --> 00:16:49,360
able to do what this farmer is doing
489
00:16:47,519 --> 00:16:50,680
they're not going to buy any more wheat
490
00:16:49,360 --> 00:16:53,319
and then the price is really going to
491
00:16:50,680 --> 00:16:55,120
continue to be depressed now we think
492
00:16:53,319 --> 00:16:57,880
that the federal government is no longer
493
00:16:55,120 --> 00:17:00,480
intent on eradicating the black market
494
00:16:57,880 --> 00:17:02,360
for marijuana that it doesn't have to
495
00:17:00,480 --> 00:17:05,559
have that purpose in Mind by having
496
00:17:02,360 --> 00:17:07,919
these effects imposed upon lawfully
497
00:17:05,559 --> 00:17:09,559
operating Interstate businesses because
498
00:17:07,919 --> 00:17:12,520
we think that those businesses are
499
00:17:09,559 --> 00:17:14,559
actually reducing the amount of criminal
500
00:17:12,520 --> 00:17:17,319
activity in the industry because they
501
00:17:14,559 --> 00:17:19,799
are providing a safe regulated product
502
00:17:17,319 --> 00:17:21,600
for dads and moms to go buy after they
503
00:17:19,799 --> 00:17:23,839
buy a bottle of wine on a Friday
504
00:17:21,600 --> 00:17:26,039
afternoon it reduces the the need or the
505
00:17:23,839 --> 00:17:28,600
desire for anyone to do a black market
506
00:17:26,039 --> 00:17:30,600
transaction and so the more that these
507
00:17:28,600 --> 00:17:32,200
fact that they're in 38 States really
508
00:17:30,600 --> 00:17:33,880
shows that the majority of the country
509
00:17:32,200 --> 00:17:35,640
feels that these products are safe
510
00:17:33,880 --> 00:17:37,799
enjoys consuming these products and
511
00:17:35,640 --> 00:17:40,400
wants them to be lawfully regulated and
512
00:17:37,799 --> 00:17:42,039
available do you think that the feds
513
00:17:40,400 --> 00:17:43,720
would argue though that there are
514
00:17:42,039 --> 00:17:45,559
certain states where it's not tight
515
00:17:43,720 --> 00:17:47,520
enough there's too much Diversion the
516
00:17:45,559 --> 00:17:49,360
program's not strong enough maybe in
517
00:17:47,520 --> 00:17:51,200
line with one of the previous
518
00:17:49,360 --> 00:17:52,760
enforcement memos that came out from the
519
00:17:51,200 --> 00:17:54,440
Department of Justice because I know
520
00:17:52,760 --> 00:17:56,159
Massachusetts is a great jurisdiction
521
00:17:54,440 --> 00:17:57,679
they're tightly regulated they do their
522
00:17:56,159 --> 00:17:59,440
best to prevent diversion but there are
523
00:17:57,679 --> 00:18:01,360
other states in admittedly probably
524
00:17:59,440 --> 00:18:03,159
California that have diversion problems
525
00:18:01,360 --> 00:18:04,679
and I would throw Oregon in there too
526
00:18:03,159 --> 00:18:06,600
that's common knowledge do you think
527
00:18:04,679 --> 00:18:08,480
that's going to come out as a curveball
528
00:18:06,600 --> 00:18:10,640
well I think it will I mean I they will
529
00:18:08,480 --> 00:18:12,200
argue that there's still a problem there
530
00:18:10,640 --> 00:18:14,000
um you know in response to that I can
531
00:18:12,200 --> 00:18:16,760
say two things I mean if you read like
532
00:18:14,000 --> 00:18:19,080
in the last six weeks New York made a
533
00:18:16,760 --> 00:18:21,240
substantial effort to crack down on on
534
00:18:19,080 --> 00:18:23,320
these illegal shops that are highly
535
00:18:21,240 --> 00:18:25,480
criticized and whether or not that
536
00:18:23,320 --> 00:18:27,400
cannabis is coming from Oregon in
537
00:18:25,480 --> 00:18:28,880
California I think is debatable you know
538
00:18:27,400 --> 00:18:31,080
I walked in one of these shops when I
539
00:18:28,880 --> 00:18:32,520
was in in New York and in September just
540
00:18:31,080 --> 00:18:34,000
to see and I I've had a couple people in
541
00:18:32,520 --> 00:18:35,600
the industry tell me they're making it
542
00:18:34,000 --> 00:18:36,880
look like it's coming from California
543
00:18:35,600 --> 00:18:38,520
because they want you to believe it's
544
00:18:36,880 --> 00:18:40,280
the same product but it's really just a
545
00:18:38,520 --> 00:18:42,600
fake I don't know whether that's true or
546
00:18:40,280 --> 00:18:44,720
not what I do know is you can tell what
547
00:18:42,600 --> 00:18:46,559
the real products are and as a consumer
548
00:18:44,720 --> 00:18:48,640
if you want to help our case don't buy
549
00:18:46,559 --> 00:18:50,080
those illegal products let the state
550
00:18:48,640 --> 00:18:51,720
government shut them down they're not
551
00:18:50,080 --> 00:18:53,520
good for the lawful businesses they're
552
00:18:51,720 --> 00:18:55,480
not good for the industry they're not
553
00:18:53,520 --> 00:18:57,760
good for you but if you buy the the
554
00:18:55,480 --> 00:18:59,039
products that are regulated and stamped
555
00:18:57,760 --> 00:19:00,480
locally and you know where they're
556
00:18:59,039 --> 00:19:02,200
coming from you know that that Community
557
00:19:00,480 --> 00:19:03,799
is benefiting from your transaction
558
00:19:02,200 --> 00:19:05,080
there I think that if the federal
559
00:19:03,799 --> 00:19:07,200
government makes that argument we can
560
00:19:05,080 --> 00:19:09,799
say look these states have the power and
561
00:19:07,200 --> 00:19:11,559
they have the incentive to shut down all
562
00:19:09,799 --> 00:19:13,159
illegal activity in particular if it's
563
00:19:11,559 --> 00:19:14,840
going out of state and you know there's
564
00:19:13,159 --> 00:19:16,799
been a commitment by several States
565
00:19:14,840 --> 00:19:18,880
including California and Oregon to
566
00:19:16,799 --> 00:19:21,120
ultimately try to figure out the
567
00:19:18,880 --> 00:19:23,080
problems with illegal interstate
568
00:19:21,120 --> 00:19:24,600
commerce if and when they have the power
569
00:19:23,080 --> 00:19:26,679
to do that if the federal government
570
00:19:24,600 --> 00:19:28,559
decides to step back I think there are
571
00:19:26,679 --> 00:19:29,960
lots of solutions but but saying they
572
00:19:28,559 --> 00:19:31,440
need to continue to treat these
573
00:19:29,960 --> 00:19:33,320
businesses throughout the country as
574
00:19:31,440 --> 00:19:35,159
illegal businesses just because there's
575
00:19:33,320 --> 00:19:36,919
some leakage there are ways to deal with
576
00:19:35,159 --> 00:19:39,000
the leakage without causing these
577
00:19:36,919 --> 00:19:40,880
penalties on the lawful businesses I
578
00:19:39,000 --> 00:19:43,159
like it okay I have two more questions
579
00:19:40,880 --> 00:19:44,640
for you before I let you go number one
580
00:19:43,159 --> 00:19:47,159
what are the downsides if you don't
581
00:19:44,640 --> 00:19:48,880
Prevail is industry left status quo are
582
00:19:47,159 --> 00:19:50,840
they left worse off what do you think
583
00:19:48,880 --> 00:19:53,159
there's no downsides I mean if we get
584
00:19:50,840 --> 00:19:55,640
thrown out or if we never get back to
585
00:19:53,159 --> 00:19:57,200
the Supreme Court then we've tried and
586
00:19:55,640 --> 00:19:58,880
you know we have a group of people
587
00:19:57,200 --> 00:20:00,360
committed and support supporting this
588
00:19:58,880 --> 00:20:02,520
the level of support continues every
589
00:20:00,360 --> 00:20:04,440
week we encourage people to to advocate
590
00:20:02,520 --> 00:20:06,640
for us and to support the case if they
591
00:20:04,440 --> 00:20:08,360
want to you know we'll have tried the
592
00:20:06,640 --> 00:20:10,559
reason that we brought the case now is
593
00:20:08,360 --> 00:20:12,240
because in part because we're looking at
594
00:20:10,559 --> 00:20:14,000
the court differently than we were four
595
00:20:12,240 --> 00:20:15,720
or five years ago and in part because
596
00:20:14,000 --> 00:20:17,360
the facts while the facts have been
597
00:20:15,720 --> 00:20:19,360
there for a while I think they're very
598
00:20:17,360 --> 00:20:21,640
strong right now and we have a
599
00:20:19,360 --> 00:20:23,440
legislative record that is just it's
600
00:20:21,640 --> 00:20:25,039
almost unbearable to take because for
601
00:20:23,440 --> 00:20:27,200
seven years I keep getting told by
602
00:20:25,039 --> 00:20:29,679
people in the industry the the solution
603
00:20:27,200 --> 00:20:32,240
is right around the corner it's going to
604
00:20:29,679 --> 00:20:34,120
happen next year and we just see it we
605
00:20:32,240 --> 00:20:36,480
see all these attempts to do reasonable
606
00:20:34,120 --> 00:20:38,360
things to get bipartisan laws past that
607
00:20:36,480 --> 00:20:40,240
have an overwhelming amount of support
608
00:20:38,360 --> 00:20:41,799
that never make it to the cutting floor
609
00:20:40,240 --> 00:20:44,440
and now we have a speaker who's
610
00:20:41,799 --> 00:20:46,799
notoriously spoken against marijuana and
611
00:20:44,440 --> 00:20:49,240
so he's sort of got his thumb on the
612
00:20:46,799 --> 00:20:53,559
scales and um you know while these other
613
00:20:49,240 --> 00:20:55,520
efforts including um you know um re
614
00:20:53,559 --> 00:20:57,600
reclassifying the the scheduling of the
615
00:20:55,520 --> 00:20:58,720
drug would have a great impact we hope
616
00:20:57,600 --> 00:21:01,919
those things happen happen but they
617
00:20:58,720 --> 00:21:04,000
won't achieve the full satisfaction of
618
00:21:01,919 --> 00:21:07,679
what we can achieve with Federal with
619
00:21:04,000 --> 00:21:09,679
getting rid of federal criminalization
620
00:21:07,679 --> 00:21:11,400
entirely right and I just want to
621
00:21:09,679 --> 00:21:14,520
emphasize to listeners even if a
622
00:21:11,400 --> 00:21:16,559
reschedule to three occurs we still have
623
00:21:14,520 --> 00:21:18,320
a whole state-based adult use and
624
00:21:16,559 --> 00:21:20,760
medicinal Market that deserves
625
00:21:18,320 --> 00:21:22,840
protection and we probably can't rely on
626
00:21:20,760 --> 00:21:24,840
lawmakers to ensure that or it's going
627
00:21:22,840 --> 00:21:27,559
to get really weird otherwise but I
628
00:21:24,840 --> 00:21:30,000
digress do you want the FDA to regulate
629
00:21:27,559 --> 00:21:31,400
marijuana so that you can only do it
630
00:21:30,000 --> 00:21:34,240
through a prescription that would be
631
00:21:31,400 --> 00:21:36,799
worse I with you Josh that is not the
632
00:21:34,240 --> 00:21:38,559
regulator of my choice Miss scenario but
633
00:21:36,799 --> 00:21:40,679
okay last question it's a bit of a silly
634
00:21:38,559 --> 00:21:43,799
one and it's a touchy Fey one but I I
635
00:21:40,679 --> 00:21:45,600
gotta hear it from you why take on this
636
00:21:43,799 --> 00:21:47,520
case especially in light of all the
637
00:21:45,600 --> 00:21:50,240
other civil rights matters your firm has
638
00:21:47,520 --> 00:21:52,279
worked on why take this one well we love
639
00:21:50,240 --> 00:21:53,679
these cases we love these these hard
640
00:21:52,279 --> 00:21:55,720
cases particularly with growing
641
00:21:53,679 --> 00:21:57,600
Industries like we did with DraftKings
642
00:21:55,720 --> 00:21:59,520
several years ago saving them from the
643
00:21:57,600 --> 00:22:00,880
office of the New York attorney general
644
00:21:59,520 --> 00:22:02,720
and the crosshairs of many other
645
00:22:00,880 --> 00:22:04,480
attorneys generals but you know with a
646
00:22:02,720 --> 00:22:05,720
new industry and I call it a new
647
00:22:04,480 --> 00:22:08,240
industry even though it's been around
648
00:22:05,720 --> 00:22:10,279
for 20 years it's new to where it is in
649
00:22:08,240 --> 00:22:12,480
many states and I think it's a really an
650
00:22:10,279 --> 00:22:13,799
important case because in America we
651
00:22:12,480 --> 00:22:15,840
don't have a lot of other than
652
00:22:13,799 --> 00:22:17,919
technology new industries that have been
653
00:22:15,840 --> 00:22:20,120
invented in the last 20 years and this
654
00:22:17,919 --> 00:22:22,200
is a growing industry that I think the
655
00:22:20,120 --> 00:22:24,360
rest of the world is also recognizing I
656
00:22:22,200 --> 00:22:26,679
mean all of North America has legal
657
00:22:24,360 --> 00:22:28,520
cannabis now so why should our federal
658
00:22:26,679 --> 00:22:30,799
government continue to impose these
659
00:22:28,520 --> 00:22:32,320
problems and impede the growth of this
660
00:22:30,799 --> 00:22:34,279
industry which is contributing to
661
00:22:32,320 --> 00:22:37,200
communities in ways that farming hasn't
662
00:22:34,279 --> 00:22:38,880
been sustained it's a way to rehabili
663
00:22:37,200 --> 00:22:40,559
some communities around the country that
664
00:22:38,880 --> 00:22:42,279
have suffered where industry has left
665
00:22:40,559 --> 00:22:44,240
for 100 years and not come back and
666
00:22:42,279 --> 00:22:46,480
hopefully the courts will recognize this
667
00:22:44,240 --> 00:22:47,559
I genuinely think Congress does I just
668
00:22:46,480 --> 00:22:49,159
think the problem is that they're
669
00:22:47,559 --> 00:22:51,480
Congress and so they can't get
670
00:22:49,159 --> 00:22:52,679
reasonable things done efficiently and
671
00:22:51,480 --> 00:22:54,320
if they could this would have been done
672
00:22:52,679 --> 00:22:56,080
a long time ago you know we think that
673
00:22:54,320 --> 00:22:57,440
this is the kind of there's just a need
674
00:22:56,080 --> 00:22:59,320
at this point I mean I've been looking
675
00:22:57,440 --> 00:23:01,159
at this case for about 5 years as the
676
00:22:59,320 --> 00:23:02,880
industry really started to grow after
677
00:23:01,159 --> 00:23:04,679
California and and and certainly
678
00:23:02,880 --> 00:23:06,440
Colorado was the leader but California
679
00:23:04,679 --> 00:23:08,279
really opened up a huge amount of
680
00:23:06,440 --> 00:23:09,799
industry and we've seen a lot of people
681
00:23:08,279 --> 00:23:11,159
follow and so we want to protect these
682
00:23:09,799 --> 00:23:13,400
industries we want to protect this
683
00:23:11,159 --> 00:23:14,960
entrepreneural American Spirit and we we
684
00:23:13,400 --> 00:23:16,320
see this as a really important case even
685
00:23:14,960 --> 00:23:18,080
though it's a commercial one you know
686
00:23:16,320 --> 00:23:19,840
it's not a pro bono case but it's it's
687
00:23:18,080 --> 00:23:22,039
an important industry and they are
688
00:23:19,840 --> 00:23:24,720
really suffering for what I would call
689
00:23:22,039 --> 00:23:27,000
unnecessary and discriminatory practices
690
00:23:24,720 --> 00:23:28,799
fair enough well Josh thank you so much
691
00:23:27,000 --> 00:23:31,200
for your time I think we all better off
692
00:23:28,799 --> 00:23:33,200
from having heard it directly from you
693
00:23:31,200 --> 00:23:35,840
very exciting lawsuit I wish you the
694
00:23:33,200 --> 00:23:37,799
best of luck and we'll certainly yeah
695
00:23:35,840 --> 00:23:40,520
we'll certainly be watching thanks than
696
00:23:37,799 --> 00:23:40,520
very nice to meet
697
00:23:41,880 --> 00:23:47,000
you and that concludes today's episode
698
00:23:44,320 --> 00:23:50,650
of the Cannabis law Now podcast until
699
00:23:47,000 --> 00:23:54,600
next time staylor stay
700
00:23:50,650 --> 00:23:57,600
[Music]
701
00:23:54,600 --> 00:23:57,600
alive