Dana Gentry
(Nevada Current) More than 20 years after Nevada voters approved the use of marijuana for medical purposes, a judge Wednesday ordered the state pharmacy board to remove the substance from its Schedule 1 list of substances.
List 1 substances are defined by the federal Drug Enforcement Administration as drugs with no currently accepted medical use and a high potential for abuse.
In a lawsuit filed by the Nevada ACLU, Clark County District Judge Joe Hardy ruled that listing cannabis as a Schedule 1 substance violates the Nevada Constitution, which explicitly states that cannabis is used medicinally.
The Nevada Constitution permits the “use by a patient, on the advice of his physician, of a plant of the genus Cannabis for the treatment or alleviation of cancer, glaucoma, acquired immunodeficiency syndrome … or other chronic or debilitating medical conditions.”
ACLUNV says individuals are still being arrested for possession of cannabis based on the Board of Pharmacy’s listing of the substance as a Schedule 1 drug. It filed a lawsuit on behalf of Antoinette Poole, a man convicted of possessing a controlled substance for marijuana possession.
“A finding of unconstitutionality of the specific statute underlying a conviction could provide a basis for overturning that conviction through a case specifically requesting an exemption,” said Athar Haseebullah, ACLUNV executive director. “Yet, future charges should not be brought under this amorphous planning category, where cannabis is listed alongside heroin.”
“The board of directors can only schedule a substance under the restrictions set by the legislator if that substance, one, has a high potential for abuse, and then two, either has no medical use or cannot be safely distributed,” Chris Peterson, ACLUNV’s legal director, told the judge.
The Board of Pharmacy, represented by its general counsel, Brett Kandt, argued that the federal government lists cannabis as a Schedule 1 substance, and therefore the classification should apply in Nevada.
Hardy said he was unwilling to rule on the ACLU’s request to prevent the Board of Pharmacy from exercising any regulatory power over cannabis. He asked the parties to present their arguments in the form of a decision.
Kandt said that in several other states with medical marijuana, lawmakers have instructed the Board of Pharmacy to remove cannabis from Schedule 1. He also noted that in two decades and nine laws, the legislature has made no attempt to override the Board of Pharmacy’s authority to list cannabis.
But ACLUNV argued that the decades-long unconstitutional listing of cannabis on Schedule 1 is no reason to perpetuate it now.
Since the approval of recreational marijuana use in 2017, the legislature has created the Cannabis Control Board to regulate marijuana, the ACLU said, adding that the CCB’s regulatory rules do not mention the Board of Pharmacy.
Kandt did not respond to questions from de Stroom about whether the Board of Pharmacy intends to appeal.
“They should have removed it immediately after our submission and agreed to the verdict,” Haseebullah said after Wednesday’s ruling, adding that their arguments and what they were doing here were worth nothing.
Haseebullah says ACLUNV plans to file attorney fees with the Board of Pharmacy, which is funded solely by Nevada pharmacy fees.
“Our request will not be insignificant,” he said.
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