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Pharmacy board appeals ruling that bars it from regulating marijuana

Updated November 30, 2022 - 8:14 pm

The Nevada Board of Pharmacy is appealing a recent ruling from a judge who determined that the board can no longer regulate marijuana.

District Judge Joe Hardy Jr. concluded that the board’s regulation of marijuana, cannabis or cannabis derivatives was unconstitutional, according to a court order filed in October. The judge previously ruled that the board could not classify cannabis as a Schedule 1 drug — the same classification used for heroin and LSD.

The board filed court documents last week indicating that it is appealing Hardy’s decision to the Nevada Supreme Court. The board also requested that Hardy’s ruling, which ordered the board to immediately stop regulating cannabis, be halted until the appeal could be settled.

Requiring the board to stop regulating cannabis before an appeal will “create a layer of legal uncertainty where none existed before, thrusting Nevada into a legal ‘no man’s land,’” state attorneys wrote in court documents filed last week.

Hardy’s ruling came in a lawsuit filed in April against the Board of Pharmacy by the American Civil Liberties Union of Nevada on behalf of plaintiffs Antoine Poole and the Cannabis Equity and Inclusion Community.

ACLU Executive Director Athar Haseebullah called the board’s appeal “ridiculous” in a statement sent 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,” Hassebullah said in the statement.

Brett Kandt, a lawyer representing the Board of Pharmacy, declined to comment on Tuesday.

Hardy has ruled that the board has no power to place marijuana on the list of scheduled drugs because of legislation from 2019, referred to as “Title 56,” that regulates marijuana and included the creation of the Cannabis Compliance Board.

The judge also agreed with the ACLU’s argument during a September court hearing that marijuana has an accepted medical use under Nevada law, as voters amended the state constitution in 2000 to legalize medical marijuana.

In court documents filed last week, state attorneys wrote that to carry out Hardy’s order, the board would have to issue a temporary regulation removing marijuana from the Schedule 1 list, which would expire in November 2023.

If the board successfully appeals the decision after a permanent regulation is enacted, state law would have to be amended for the board to regulate cannabis again, “a task comparable to putting toothpaste back in the tube or unscrambling an egg,” attorneys wrote.

Contact Katelyn Newberg at knewberg@reviewjournal.com or 702-383-0240. Follow @k_newberg on Twitter.

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