Cannabis Legal Report – November 2022 | Perkins Coie

[Co-Author: Hanna Barker Mullin]

Cannabis: In focus

  • Election Summary: Two states approve, three oppose referendums on adult cannabis use
  • Northern District of New York Rules on Dormant Commerce Clause and Adult-Use Retail Licenses in New York
  • Kansas federal court dismisses hemp confiscation lawsuit
  • Federal court dismisses Florida lawsuit alleging gun rights for medical cannabis patients

Election Summary: Two states approve, three oppose referendums

Midterm voters approved ballot measures to legalize cannabis in Maryland and Missouri, but polling issues in Arkansas, North Dakota and South Dakota were rejected. After the election, almost half of Americans will live in states where cannabis has been legalized.

Voting measures in Maryland and Missouri will allow people 21 and older to use cannabis. In the coming months, these states are expected to develop regulations to regulate their new markets for adult use.

Northern District of New York Rules on Dormant Commerce Clause and Adult-Use Retail Licenses in New York

New York is scheduled to begin selling adult-use cannabis later this year, and the Northern District of New York has issued an injunction barring certain regions of the state from issuing adult-use retail licenses. The original New York licenses were for companies with New York connections and those affected by the state’s cannabis laws.

A Michigan-based retailer filed the lawsuit, alleging the New York Rules violated the Dormant Commerce Clause (DCC). The injunction covers the region where the Michigan retailer has applied for a license.

We are closely monitoring the development of DCC case law regarding cannabis. Earlier this year, the US Circuit Court of Appeals for the first judiciary that does not include New York in its jurisdiction vacated Maine’s residency requirement under the Dormant Commerce Clause. As we’ve written elsewhere, continued ambiguity between state and federal agencies over DCC cannabis-related concerns could lead to further litigation for regulated entities and claimants.

Kansas federal court dismisses hemp confiscation lawsuit

The US District Court for the District of Kansas dismissed a lawsuit challenging the state’s seizure of $120,000 worth of products and cash. The state claimed the products seized were Schedule 1 drugs, even though they contained only delta-8-tetrahydrocannabinol (Δ8-THC) and no Δ9-THC at levels greater than 0.3%.

The court ruled that the Farm Bill 2018 did not create a private right of action for the plaintiff to contest the federal raid and dismissed the case.

Federal court dismisses Florida lawsuit alleging gun rights for medical cannabis patients

A U.S. District Judge dismissed a lawsuit brought by Florida Agriculture Commissioner Nikki Fried and others questioning the constitutionality of prohibiting medical cannabis patients from possessing firearms. We’ve been following the case for several months (see our previous coverage here and here).

Federal laws prohibit the sale of firearms to “illegal users” of controlled substances, including cannabis. State officials argued that since Florida decriminalized cannabis use in 2016, medical cannabis patients should have the right to own firearms.

The court dismissed the lawsuit, focusing on the priority clause, saying, “State law cannot permit what federal law prohibits.”

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