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 attorneys argued that the Schedule 1 classification of cannabis was unconstitutional because voters had legalized medical marijuana with the passage of a constitutional amendment in 1998. Last month, Hardy ruled that the Schedule 1 classification was unconstitutional.

“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 attorneys argued that despite the legalization of medical marijuana and the availability of regulated medicinal cannabis in Nevada since 2000, the pharmacy board continued to list cannabis similarly to illicit substances including heroin and 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

After the ruling, ACLUNV noted that the decision means the pharmacy board does not have the authority to regulate cannabis under 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.”

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Despite the legalization of cannabis for medical and recreational purposes in Nevada, police continue to arrest people for possession as the state’s Board of Pharmacy refuses to reschedule cannabis—but that could soon change with a new ruling.

On September 14, a judge ordered the Nevada Board of Pharmacy to remove cannabis from its list of Schedule 1 substances, after ACLU Nevada filed a lawsuit last April.

“In order for a substance to be classified as a Schedule 1 controlled substance, the Board of Pharmacy has to find that it has no medical value and cannot be safely distributed,” ACLU of Nevada Director of Communications and Campaigns Wes Juhl told High Times. “The Nevada Constitution, however, provides that cannabis has accepted medical uses as a matter of law—the Constitution even lists a number of diagnoses for which marijuana can be used as a treatment.”

According to the Drug Enforcement Administration (DEA), Schedule 1 substances are classified as having “no currently accepted medical use and a high potential for abuse.” Cannabis is classified alongside drugs like heroin or LSD.

Clark County District Judge Joe Hardy ruled that listing cannabis under Schedule 1 is incongruent with the Nevada Constitution, because the Constitution explicitly states that cannabis has medical uses.

ACLU Nevada represents the Cannabis Equity and Inclusion Community (CEIC). The case, CEIC v. Nevada Board of Pharmacy, was filed in Clark County court last April, according to a press release.

“Instead of treating cannabis like alcohol and removing it from the state’s list of controlled substances, Nevada is ignoring its state Constitution and the will of the people,” ACLU Nevada stated at the time.

ACLU Nevada sued the board on behalf of Antoinette Poole, who was convicted of possession of cannabis. Busted in 2017, Poole was charged with a Class E felony.

While the judge ruled in favor of Poole, the debate isn’t over: The judge didn’t rule on whether or not the board has the authority to regulate cannabis, because he asked both sides to submit orders on the issue for review.

“A finding of unconstitutionality of the specific statute underlying a conviction  could be a basis to overturn that conviction through a case where that relief is specifically sought,” Athar Haseebullah, executive director of ACLU Nevada, told the Nevada Current. “Just the same, charges moving forward won’t be permitted to be brought under this amorphous scheduling category where cannabis is listed next to heroin.”

The plaintiffs argued that the Board can’t restrict cannabis, because it isn’t restricted under state law.

“The Board can only schedule a substance under the restrictions placed by the Legislature, if that substance, one, has a high potential for abuse, and then two, either has no medical use or cannot be safely distributed,” ACLU Nevada Legal Director Chris Peterson told the judge.

The Board of Pharmacy’s general counsel Brett Kandt argued the federal status and classification of cannabis as a Schedule 1 substance should apply in Nevada as well.

In several other states that have legalized cannabis, lawmakers have directed the Board of Pharmacy to remove cannabis from Schedule 1 as well.

Meanwhile other efforts to protect people convicted of cannabis-related charges are taking place in the state.

Last month, three nonprofit organizations—the Legal Aid Center of Southern Nevada, Nevada Legal Services, and Code for America—were granted a total of $1.2 million from cannabis tax revenue from the Clark County Commission. Code for America, which received $200,000 of this amount, will investigate how to implement automatic record sealing.

Bay Area-based Code for America in California has several months left to figure out what would be necessary to speed up this process. Some hope that it could bring attention back to Assembly Bill 192, also called the Nevada Second Chance Act, which was passed in 2019.

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