ACCESS Newswire
27 Aug 2026, 19:45 GMT+10
Before dismissing the case on standing, Judge McFadden warned the government from the bench that the outcome 'is not going to go well for the government on remand' if he got the threshold question wrong. That appeal is now scheduled.
WASHINGTON, D.C. / ACCESS Newswire / August 27, 2026 / The U.S. Court of Appeals for the District of Columbia Circuit has entered a briefing schedule in Smart Approaches to Marijuana, et al. v. Kennedy, No. 26-5205, the appeal challenging the Centers for Medicare & Medicaid Services' Substance Access Beneficiary Engagement Incentive. MMJ International Holdings, Inc. and its subsidiaries are among the appellants.
The order directs that all issues be raised in the opening brief, and the court has advised that oral argument will be scheduled separately.
What the district court decided - and what it did not
On May 22, 2026, U.S. District Judge Trevor N. McFadden dismissed the case for lack of subject-matter jurisdiction. He did not hold that CMS acted lawfully.
'But the Court need not address those question[s] to resolve this dispute. Plaintiffs, though numerous, have not established standing to bring this case. Each claims an injury too abstract or too remote to open the courtroom doors.'
The opinion expressly reserved the substantive questions. In footnote 8, the court stated it 'does not decide whether ... CMS may implement the BEI without notice-and-comment,' calling that 'a merits question,' and likewise did not address 'whether Plaintiffs fall within a statute's zone of interests and thus have a cause of action.'
In footnote 7, the court noted that having found MMJ was not a current competitor, it 'need not address other questions competitor standing raises, such as whether there is sufficient market overlap' or whether the competition 'adversely affect[s]' MMJ's 'bottom line.'
Whether CMS lawfully created a federal pathway for hemp-derived cannabinoid products without notice-and-comment rulemaking has never been decided by any court.