Published on: September 15, 2022, 12:39 p.m.
Last updated: September 15, 2022, 01:25.
A district judge ruled Wednesday that the Nevada Board of Pharmacy’s classification of cannabis as a Schedule 1 drug is unconstitutional. This ruling will prevent future prosecutions for cannabis-related offenses under laws that only apply to Schedule 1 drugs but do not specifically refer to cannabis. It also sets a possible stage for vacating previous cannabis-related convictions in the future.
The ruling settled a lawsuit filed against the board by the American Civil Liberties Union of Nevada (ACLU). They acted on behalf of Antoine Poole, a Nevada resident convicted of a Class E felony for possession of marijuana in 2017, after Nevada has legalized the recreational use of cannabis. The other plaintiff was the Cannabis Equity and Inclusion Community, a Nevada nonprofit that helps reduce barriers to licensure and employment in the marijuana industry.
Despite Nevada voters successfully amending the state constitution in 2000 to legalize medical marijuana, it was still considered a Schedule 1 drug under Nevada law. This classification is reserved for drugs, such as heroin and methamphetamine, with either a high potential for abuse and/or no accepted medical use.
In his ruling, U.S. District Judge Joe Hardy Jr. agreed with the ACLU’s argument that cannabis do what have an accepted medical use and ordered the Pharmacy Board to remove it from its list of Schedule 1 drugs.
“The constitutional right to use marijuana on the advice of a physician establishes that marijuana has an accepted medical use and treatment in the United States,” Hardy said.
The ACLU argued, and Hardy agreed, that police continued to make cannabis-related arrests because of the misclassification of the drug, which conflicted with constitutional protections afforded to medical marijuana patients.
Hardy specifically stated that this ruling does not apply to overturning previous cannabis convictions. That’s because the ACLU lawsuit didn’t address the issue. However, the ruling sets the stage for future lawsuits addressing the issue.
US government out of step
Under Section 812 of Title 21 of the US Code, cannabis is still considered a Schedule 1 drug. That’s why you can still be arrested for taking it on a plane – even when you’re flying between states with legal recreational marijuana—because air travel is federally regulated.
Brett Kandt, an attorney defending the Nevada Board of Pharmacy against the ACLU’s lawsuit, argued that the federal government’s classification of cannabis justified Nevada’s and that an amendment to the state constitution was not enough to establish the medical value of cannabis. Hardy disagreed — nor did he agree to the board’s motion to dismiss the lawsuit in July.
Finally, here come the cannabis lounges
Also Wednesday, cannabis regulators announced that starting Oct. 14, they will begin accepting applications from businesses that want to host cannabis lounges. The Nevada Legislature legalized cannabis lounges in 2019. However, the first lounges had to wait until regulations for them were approved by the Nevada Cannabis Compliance Board. That didn’t happen until June 2022.
Although cannabis can be legally purchased by adults in Nevada, it is only legal to consume it in a private residence or cannabis lounge. The problem is that only one cannabis lounge operates legally near Las Vegas. NuWu Cannabis Marketplace’s Vegas tasting room opened in a dispensary five miles north of The Strip in 2019. It only operates because of a regulatory loophole that allows cannabis lounges on tribal land.
More cannabis lounges, which should be a boon to the state’s tourism industry, are expected to open before 2023. Business owners have until October 27 at 5 p.m. to apply online for a license.