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Nevada Judge Orders Board Of Pharmacy To Remove Marijuana From Schedule I Under Agency’s ‘Unconstitutional’ Code

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A Nevada judge has ruled that the Board of Pharmacy’s classification of the drug as a Schedule I substance violates the state Constitution and that the agency “exceeded its authority” by making that designation.

Clark County District Court Judge Joe Hardy has previously determined that the Schedule I classification was unconstitutional based on the fact that the state has legalized it for medical and recreational use. But he withheld judgment at the time about the board’s regulatory authority in order to give petitioners and respondents time to submit filings in the case.

The submission deadline was October 5. Now, on Wednesday, the judge handed down his final, merit-based ruling that found the board “acted outside of its authority when it failed to remove cannabis from the list of Schedule I substance” when medical marijuana reform was enshrined in the state Constitution.

“The misclassification is unconstitutional and must be declared invalid,” the ruling says.

The ACLU of Nevada filed the lawsuit earlier this year, alleging that despite voter-approved legalization, police have continued to make marijuana-related arrests because the Board of Pharmacy has refused to remove cannabis from its controlled substances list. The ongoing restrictive designation has effectively created a legal “loophole” that the civil rights group says conflicts with long-standing constitutional protections for medical marijuana patients.

The board attempted to get the lawsuit dismissed, but Hardy rejected that motion in July.

ACLU NV represented the Cannabis Equity and Inclusion Community (CEIC) and Antoinette Poole, a Nevada resident who was found guilty of a Class E felony for cannabis possession in 2017., in the case.

The organization contended that the legalization of marijuana for medical and recreational use through voter-approved ballot initiatives put regulatory authority over marijuana squarely in the jurisdiction of the state Cannabis Compliance Board (CCB)—and the refusal of the Board of Pharmacy to declassify marijuana has led to unconstitutional prosecutions.

In the new court ruling, which The Nevada Independent first reported on, the judge also notes that Nevada law places significant regulatory authority in the state Department of Taxation. The Board of Pharmacy is not given such authority under statute.

“The Nevada Board of Pharmacy acted outside of its authority when it failed to remove cannabis from the list of Schedule I substances upon the enactment of Article 4, Section 38 of the Constitution of the State of Nevada, which recognizes the use of cannabis for medical treatment,” it says.

Meanwhile, the state’s properly authorized marijuana regulators announced earlier this month that applications had opened for cannabis consumption lounges—a license type that many are hopeful will attract tourism and further drive sales.

That development came more than a year after Gov. Steve Sisolak (D) signed a bill from Assemblyman Steve Yeager (D) legalizing consumption lounges. Applications for the first round of consumption lounges are due by the end of Thursday.

The governor touted Nevada’s lounge law in a 4/20 op-ed for Marijuana Moment this year, writing: “The idea isn’t new, but no one is doing it like we are in Nevada.”

Marijuana sales totaled just under $1 billion in Nevada in the 2022 Fiscal Year, generating more than $152 million in cannabis tax revenue, officials reported this month. Most of the proceeds are going toward funding schools.

Sisolak has committed to promoting equity and justice in the state’s marijuana law. In 2020, for example, he pardoned more than 15,000 people who were convicted for low-level cannabis possession. That action was made possible under a resolution the governor introduced that was unanimously approved by the state’s Board of Pardons Commissioners.

Separately, last year, a former Las Vegas police officer who sued after facing termination for testing positive for marijuana scored a significant procedural victory, with a district judge denying the department’s request for summary judgement and agreeing that state statute protects employees’ lawful use of cannabis outside of work.

Read the text of the court’s Nevada Board of Pharmacy marijuana scheduling ruling below:

Photo elements courtesy of rawpixel and Philip Steffan.

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