Dana Gentry

(Nevada Current) More than 20 years after Nevada voters approved the use of marijuana for medical purposes, a judge on Wednesday ordered the state Board of Pharmacy to remove the substance from its list of Schedule 1 substances.

Schedule 1 substances are defined as drugs with no currently accepted medical use and a high potential for abuse, according to the federal Drug Enforcement Administration.

In a lawsuit brought by the ACLU of Nevada, Clark County District Judge Joe Hardy ruled the listing of cannabis as a Schedule 1 substance is at odds with the Nevada Constitution, which explicitly states cannabis has medical uses.

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.”

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 sued on behalf of Antoinette Poole, a man convicted of possession of a controlled substance for possessing marijuana.

“A finding of unconstitutionality of the specific statute underlying a conviction  could be a basis to overturn that conviction through a case where that relief is specifically sought,” says Athar Haseebullah, executive director of ACLUNV. “Just the same, charges moving forward won’t be permitted to be brought under this amorphous scheduling category where cannabis is listed next to heroin.”

“The Board can only schedule a substance under the restrictions placed by the Legislature, if that substance, one, has a high potential for abuse, and then two, either has no medical use or cannot be safely distributed,” ACLUNV legal director Chris Peterson told the judge.

The Board of Pharmacy, represented by its general counsel, Brett Kandt, argued the federal government lists cannabis as a Schedule 1 substance, therefore, the classification should apply in Nevada.

Hardy said he was not prepared to rule on the ACLU”s request that the Board of Pharmacy be prevented from wielding any regulatory power over cannabis. He asked the parties to present their arguments in the form of an order.

Kandt said that in several other states with medical marijuana, lawmakers have directed the Board of Pharmacy to remove cannabis from Schedule 1. He also noted that in two decades and nine pieces of legislation, the Legislature has made no effort to change the Board of Pharmacy’s authority to list cannabis.

But ACLUNV maintained that cannabis’s decades-long unconstitutional listing on Schedule 1 is no reason to perpetuate it now.

Since the approval of recreational marijuana use in 2017, the Legislature created the Cannabis Control Board to regulate marijuana, the ACLU said, adding the CCB’s reams of regulation make no mention of the Board of Pharmacy.

Kandt did not respond to questions from the Current about whether the Board of Pharmacy intends to appeal.

“They should have immediately removed it upon our filing and consented to the judgment,” Haseebullah said after the ruling Wednesday, adding there was “zero value in their arguments and what they did here.”

Haseebullah says ACLUNV intends to seek attorney fees from the Board of Pharmacy, which is funded solely by fees from pharmacies in Nevada.

“Our request won’t be insignificant,” he said.