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Nevada Judge Orders Cannabis Removed From State’s List of Controlled Substances

A Clark County, Nevada judge ruled on Wednesday that the state pharmacy board does not have the authority to regulate cannabis and cannabis derivatives under state law and ordered the agency to remove marijuana from the state’s list of controlled substances. In the decision, Clark County District Court Judge Joe Hardy wrote that if the Nevada State Board of Pharmacy “designates a substance as a ‘controlled substance’ but the designation falls outside the authority delegated by the ​​Legislature, the designation is invalid.”

The ruling stems from a case brought against the pharmacy board by the American Civil Liberties Union of Nevada (ACLUNV) on behalf of Antoine Poole and the Cannabis Equity and Inclusion Community, an organization that assists entrepreneurs in launching businesses in Nevada’s legal cannabis industry. ACLUNV lawyers argued that Schedule 1 cannabis classification was invalid because medical marijuana had been legalized by voters in 1998. Hardy declared last month that the Schedule 1 classification of cannabis was invalid.

“The constitutional right to use marijuana upon the advice of a physician does establish that marijuana has an accepted medical use and treatment in the United States,” Hardy ruled in a September decision cited by the Las Vegas Review-Journal.

The new ruling this week is focused on the pharmacy board’s authority to regulate cannabis. ACLUNV lawyers argued that, despite legalizing medical marijuana in Nevada and availability of controlled medicinal cannabis in Nevada from 2000 to now, the pharmacy board still listed cannabis as an illicit substance like heroin or methamphetamine. Lawyers for the pharmacy board countered that the listing was warranted because of the continued listing of marijuana as a Schedule 1 substance under federal law, an assertion rejected by the plaintiffs’ counsel.

“The notion that a state agency is able to engage in unlawful actions because it’s happening at the federal government – it’s just not the way it works,” Athar Haseebullah, the executive director of the American Civil Liberties Union of Nevada (ACLU), said on July 15 after the first hearing in the case. “They don’t work for the feds. We didn’t sue the DEA here. We sued the State Board of Pharmacy because this is a state action.”

In his ruling, Hardy wrote that “the Board exceeded its authority when it placed, or failed to remove marijuana, cannabis, and cannabis derivatives on its list as Schedule I substances.”

Advocates Applaud Nevada Judge’s Ruling

ACLUNV noted after the ruling that it means the pharmacy board no longer has the power to regulate cannabis in any schedule. Legal director Chris Peterson praised the judge’s ruling, saying that there has “been an ongoing inconsistency with how Nevada categorizes cannabis.” 

“For some people, it’s a medicine or a good time on a Friday night, and for some people it was a felony,” Peterson said in a statement from the civil rights organization. “We’re glad that we’ve now resolved this inconsistency to prevent further injustice, and we’ll continue our work to ensure that the promise of cannabis decriminalization is realized in Nevada.”

Shawn Hauser, a partner at the cannabis and psychedelics law firm Vicente Sederberg LLP, said that Hardy’s ruling “is a positive development in cannabis reform, in line with recognition by federal lawmakers and the public that cannabis has known medicinal value, can be safely regulated, and is not properly classified as a schedule 1 controlled substance that has no accepted medical use.” 

“Like Colorado, Nevada legalized cannabis through its constitution and developed a robust state regulatory system governing cannabis businesses,” Hauser said. “This case is important precedent confirming that state agencies cannot take action in conflict with state constitutional and statutory provisions, despite the illegality of cannabis under federal law.”

Ashley Dodson, the president and co-founder of Cannabis Equity and Inclusion Community, said that the court’s ruling on Wednesday will help foster social equity in Nevada’s regulated cannabis industry.

“Cannabis has been legal in Nevada for decades, but that hasn’t stopped law enforcement from treating Black and Brown people like criminals. We’re grateful for the ACLU of Nevada for taking this case on and for Judge Hardy for hearing it with fairness and dignity,” Dodson said in a statement. “As far as social equity is concerned, we’ve seen businesses act strategically to keep Black and Brown people out of the unlicensed market by preventing pathways to ownership. CEIC is hopeful that as the last loopholes allowing for the criminalization of cannabis fall by the wayside, we can get back to our original mission of assisting the communities harmed the most by the failed War on Drugs find a way into the industry.”