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Nevada Pharmacy Board To Appeal Court Ruling On ‘Unconstitutional’ Marijuana Scheduling



Nevada’s Board of Pharmacy is seeking to appeal a recent court ruling that deemed its classification of marijuana as a Schedule I drug to be unconstitutional, and it wants the order to be stayed as the appeal proceeds.

The notice of appeal was filed last week, about a month after the Clark County District Court made its final ruling in the case. Judge Joe Hardy had previously said that the board “exceeded its authority” by keeping cannabis in Schedule I.

The ACLU of Nevada filed a lawsuit over the classification 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.

“For more than 20 years, there’s been an ongoing inconsistency with how Nevada categorizes cannabis,” ACLU NV Legal Director Chris Peterson said in a press release on Tuesday.

“For some people, it’s a medicine or a good time on a Friday night, but for other people, it’s continued to result in a felony charge, even after legalization,” he said. “The District Court’s ruling was thoughtful and strong, and we have no intention of backing down until we have fixed this inconsistency to prevent further injustice.”

In a motion to stay last month’s order, the board said that the court’s ruling “represents a tectonic shift in State law with repercussions far beyond the scope of the Board’s jurisdiction: it impacts State regulation of marijuana altogether, the delineation of what may or may not constitute criminal conduct and, ultimately, public safety.”

The board described the rulemaking process for removing marijuana from the controlled substances list and said that, if it were to ultimately win its appeal and then have to undo that removal, it would be “a task comparable to putting toothpaste back in the tube or unscrambling an egg.”

The district court previously rejected a motion to dismiss the lawsuit from the Board of Pharmacy.

ACLU NV is representing 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 contends 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.

“It’s shameful to see the Board of Pharmacy continue to waste state resources with this ridiculous appeal,” ACLU NV Executive Director Athar Haseebullah said on Tuesday.

“The Board’s continued support for criminalizing cannabis and continued representation of cannabis as more dangerous than fentanyl, cocaine, and methamphetamine raises serious questions of accountability and aptitude,” he said. “The Board’s actions during the initial case alongside this appeal are a prime example of government overreach and should be offensive to every Nevadan.”

Meanwhile, Nevada marijuana regulators announced last week that they will be holding lotteries on Wednesday to select 20 independent cannabis consumption lounge licensees, half of which will be reserved for social equity applicants.

Regulators said earlier this month that they received about 100 applications for the new license type during a 10-day application window in October.

These developments come more than a year after Gov. Steve Sisolak (D) signed a bill from Assemblyman Steve Yeager (D) legalizing consumption lounges.

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.”

“While most of the consumption lounges in other states don’t offer food, beverages or other entertainment options,” he said, “Nevada’s lounges will be a one-stop entertainment shop to create jobs, grow the industry and boost our economy.”

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.

Read the Board of Pharmacy’s recent court filings in the cannabis scheduling case below: 

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Photo elements courtesy of rawpixel and Philip Steffan.

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