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Perkins Coie – Cannabis Legal Report – March 2023 #2

[co-author: Hanna Barker Mullin]

Cannabis: In Focus

  • Attorney General Garland Testifies Before Senate Judiciary Committee
  • Ninth Circuit Affirms Ruling that California County May Deny Licenses to Cultivate Cannabis
  • Oklahoma Recreational Cannabis Measure Fails
  • Medical Cannabis Patient Sues Arkansas Company for Inflating THC Levels

Attorney General Garland Testifies Before Senate Judiciary Committee

U.S. Attorney General Garland testified before the Senate Judiciary Committee on March 1, 2023. In response to a question from Sen. Cory Booker (D-NJ), Garland noted that the U.S. Department of Justice (DOJ) was still developing its cannabis policies. Nonetheless, Garland stated “it is fair to expect” that the policy would be similar to what he described in his confirmation hearing and that it would “be very close to what was done in the Cole Memorandum in the Obama administration.” Garland added “We are still working on a marijuana policy for the department.” Garland also detailed that in response to President Biden’s October 2022 declaration regarding cannabis, the U.S. Department of Health and Human Services (HHS) is working on “the scientific analysis of marijuana.” Industry advocates are actively working to inform the U.S. Food and Drug Administration (FDA) on their scheduling review and are simultaneously pushing the DOJ for an enforcement discretion policy as a part of that review.

Ninth Circuit Affirms Ruling that California County May Deny Licenses to Cultivate Cannabis

On March 6, 2023, a U.S. Court of Appeals for the Ninth Circuit panel affirmed a district court’s decision to allow Mendocino County, California, to deny a couple’s license for cannabis cultivation. In Borges v. County of Mendocino, plaintiffs alleged that Mendocino County had “arbitrarily and capriciously denied their application for a cannabis cultivation permit.” The district court had granted the county’s motion for summary judgment, and the Ninth Circuit court affirmed.

Plaintiffs appealed on the U.S. Constitution’s equal protection grounds, saying that the county had targeted them specifically when they rezoned their neighborhood as a “cannabis prohibition district.” The court reasoned that plaintiffs do not have equal protection claims since there is no federally protected right to cultivate cannabis, and the court did not believe it was their place to “rewrite the [Controlled Substances Act] to recognize a federally protected property right in marijuana cultivation.”

The opinion is the latest in appellate review of state-legal cannabis, such as issues of the Dormant Commerce Clause. Perkins Coie lawyers have written about cannabis and the Dormant Commerce Clause. Watch this space for further developments.

Oklahoma Recreational Cannabis Measure Fails

Oklahoma voters rejected a proposal to legalize cannabis for general adult-use. With more than 400 dispensaries in Oklahoma City alone, medical marijuana remains legal in the state.

The proposal would have legalized recreational cannabis use for those ages 21 and over, as well as decriminalized cannabis and allowed for expungement of criminal records for those with cannabis-related convictions.

Medical Cannabis Patient Sues Arkansas Company for Inflating THC Levels

In the latest in a string of lawsuits regarding accuracy of stated tetrahydrocannabinol (THC) labeling, an Arkansas medical cannabis patient filed suit against multiple cannabis companies and a testing lab for allegedly overstating the amount of THC on product packaging. The plaintiff purports to have tested the products at various state-authorized testing labs, with some results averaging 25% higher than other labs. As we reported in August 2022, the number of cases filed alleging overstatement THC quantity has grown in recent months, but the success of these suits has been minimal to date.

The National Cannabis Laboratory Council (NCLC) is working to nationalize lab standards throughout the 38 states that are currently regulating cannabis for medical or recreational use. The NCLC proposed a unified approach to testing based on both data from participating laboratories and scientifically recognized standards, and recently released a white paper titled “Standardizing Cannabis Lab Testing Nationally.”

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Source:  https://www.jdsupra.com/legalnews/cannabis-legal-report-march-2023-2-4205261/

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