Nevada Court Orders Pharmacy Board to Remove Cannabis as Schedule 1 Controlled Substance

A district court in Nevada has sided with cannabis advocates and ruled the state’s Board of Pharmacy must remove cannabis from the state’s controlled substances list.

In deciding the case, the judge had to examine the state’s regulatory authority and determine who had authority to regulate cannabis. To do that, the judge first looked at history and recounted the following:

In 1923, the Nevada legislature banned cannabis, making even simple possession a crime. When the legislature enacted the Uniform Controlled Substances Act in 1971, cannabis was classified as a Schedule 1 substance.

In 1981, the state legislature gave the Nevada Board of Pharmacy the authority “to designate, by regulation and within limits prescribed by the Legislature, what substances would be listed on Nevada’s schedules of controlled substances.” Since then, the Pharmacy Board has categorized cannabis and its derivatives as Schedule 1 substances. The Board may categorize a substance as Schedule 1 if it finds the substance has “high potential for abuse, and, has no accepted medical use in treatment.”

However, in 1998, Nevada passed the Nevada Medical Marijuana Act, amending the state constitution to say patients could be prescribed cannabis for the treatment of cancer, glaucoma, acquired immunodeficiency syndrome, severe nausea or wasting from these conditions, epilepsy, multiple sclerosis, and other conditions.

In 2016, Nevada voted on and passed the “Initiative to Regulate and tax Marijuana,” which legalized recreational cannabis. The initiative’s intent was to focus law enforcement attention on violent crime instead. The initiative intended cannabis to be “regulated in a manner similar to alcohol,” and it delegated regulatory authority over both recreational and medical cannabis to the Nevada Department of Taxation.

In 2019, Nevada’s legislature passed a statute titled “Regulation of Cannabis” to codify and clarify the initiative. The statute tasked the Cannabis Compliance Board with heading up regulation. The state Board of Pharmacy was mentioned nowhere in the statute.

A group of cannabis advocates sued, requesting the court resolve the discrepancies as to who has regulatory authority over cannabis and to declare the Board of Pharmacy was acting outside its authority. The judge agreed, holding that “while the Legislature may have delegated general authority to regulate marijuana, cannabis, and cannabis derivatives pursuant to the Board in 1981, the Board no longer has the authority to regulate those substances because they are now regulated pursuant to” the Regulation of Cannabis statute. The statute explicitly describes which agencies are involved in regulating cannabis: the Cannabis Compliance Board, the Cannabis Advisory Commission, the Nevada Division of Public and Behavioral Health, and the Nevada Department of Taxation. The state’s Board of Pharmacy is not referenced once. The Judge pointed out that this made sense, since cannabis would only be distributed through dispensaries and not pharmacies.

In the decision, the judge declared cannabis has accepted medical use in treatment, and the Nevada Board of Pharmacy acted outside its authority when it failed to remove cannabis from the Schedule 1 substance list. The judge ordered the Board of Pharmacy to remove cannabis from the list and to cease attempting to regulate it.

The Board of Pharmacy has filed a notice of appeal.

Reference:
Cannabis Equity and Inclusion Community v Nevada Board of Pharmacy, 1 F Supp 1-18 (EDCR Nev 2022).