ACLU of NV legal effort to remove weed from Schedule 1 survives challenge

A legal effort by the ACLU of Nevada to force the Nevada Board of Pharmacy to remove cannabis from its Schedule 1 of controlled substances will proceed, Clark County Judge Joe Hardy ruled Wednesday when he denied the board’s motion to dismiss the ACLU’s lawsuit.  

ACLUNV says individuals are still being arrested for cannabis possession based on the Board of Pharmacy’s inclusion of the substance as a Schedule 1 drug. It is suing on behalf of Antoinette Poole, a man convicted of possession of a controlled substance for possessing marijuana. 

ACLUNV is seeking a judicial order telling the Nevada Board of Pharmacy to remove cannabis and its derivatives from the list of Schedule 1 substances, which are defined as having no accepted medical use or unable to be safely distributed. 

The civil liberties group argues the position conflicts with Nevada voters’ approval of medicinal marijuana in two consecutive elections more than two decades ago. 

The Nevada Constitution allows for the “use by a patient, upon 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.”

“The standard for determining whether a drug has accepted medical use in treatment in the United States is how it’s treated on the federal level,” Brett Kandt, general counsel for the Board of Pharmacy, told Hardy. 

“The Nevada Legislature has never deemed it necessary to deschedule or reschedule marijuana to fulfill that constitutional mandate,” Kandt noted. “In that time, they have passed at least nine pieces of legislation to implement the voters will. They’ve never deemed it necessary.”

ACLUNV attorney Sadmira Ramic argued the Legislature had no need to do so because it would have been redundant. She said the state’s creation of the Cannabis Control Board to regulate marijuana eliminated the Board of Pharmacy’s role. 

“I think it’s clear that the goal of the petitioners is to have marijuana descheduled altogether,” Kandt said. Hardy asked Kandt why he believed that was the plaintiffs’ goal.

“That’s the result, because if this is a judicial determination, that schedule one is unconstitutional, and further judicial determination that the Board of Pharmacy has no authority to schedule marijuana, then it’s simply descheduled all together,” Kandt replied. 

Hardy denied the Board of Pharmacy’s motion to dismiss the suit. 

“I want to think this will be an issue that resolves with briefs but I don’t want to state at this early juncture that we’re not going to have a trial,” he said. “That’s always a possibility.”