Federal Appeals Court Sets Briefing Schedule for Medicare Hemp Lawsuit

Briefing Deadlines Extend Into Early 2027

The court set a four-month briefing window with petitioner's opening brief due October 27, 2026. CMS must file its response by December 11, 2026. The petitioner's reply brief comes due January 12, 2027. Oral arguments could land in late winter or early spring 2027.

The schedule follows standard appellate procedure for administrative law challenges in the D.C. Circuit, typically the venue for disputes over federal agency rulemaking.

Challenge Targets CMS Hemp Exclusion Policy

The lawsuit contests CMS's interpretation that hemp-derived products fall outside Medicare's prescription drug benefit. The agency issued guidance in 2025 clarifying that hemp products, despite being legal under the 2018 Farm Bill, don't qualify as covered drugs under Medicare Part D because they aren't FDA-approved prescription medications.

Key issues in the case include:

• Whether CMS exceeded its statutory authority in categorically excluding hemp products
• If the exclusion violates the Administrative Procedure Act's notice-and-comment requirements
• Whether the policy discriminates against hemp compared to other non-FDA-approved substances

Petitioners argue that Medicare beneficiaries who use hemp-derived CBD for conditions like chronic pain and anxiety are being denied coverage for therapeutically equivalent products that cost significantly less than FDA-approved alternatives.

Medicare Beneficiaries Face Coverage Gap

An estimated 2.3 million Medicare enrollees report using hemp-derived CBD products for medical purposes, according to 2025 survey data. None of those purchases qualify for Medicare reimbursement under current CMS policy. Out-of-pocket costs average $87 per month for regular users.

The coverage gap hits hardest for fixed-income seniors managing multiple chronic conditions who turned to hemp products after the 2018 Farm Bill legalized them nationwide.

For context on the broader regulatory landscape, see the CannIntel topic hub on Medicare Hemp Coverage.

What to Watch as Briefs Are Filed

The petitioner's October brief will reveal whether the challenge focuses on procedural violations or substantive statutory interpretation. If the argument centers on CMS's failure to conduct notice-and-comment rulemaking, the court could remand without reaching the merits. A statutory interpretation challenge would force the court to decide whether Medicare's drug benefit language permits or prohibits hemp coverage.

CMS's December response will likely argue that FDA approval is a prerequisite for Medicare drug coverage and that hemp products' legal status under agricultural law doesn't override health-program requirements. The agency has held this position consistently since the 2018 Farm Bill passed.

A ruling is expected by mid-2027. We'll be watching whether the court forces CMS to reconsider its policy or upholds the exclusion as settled Medicare law.