Nevada Judge Orders State Board to Remove Cannabis from Schedule 1

Despite legalizing cannabis for medical and recreational purposes in Nevada, police continue to arrest people for possession as the state’s Board of Pharmacy refuses to reschedule cannabis – but that could change with a new ruling soon.

On September 14, a judge ordered the Nevada Board of Pharmacy to remove cannabis from its Schedule 1 list after the ACLU Nevada filed a lawsuit last April.

“For a substance to be classified as a Schedule 1 controlled substance, the Board of Pharmacy must determine that it has no medical value and is not safe to market,” Wes Juhl, director of communications and campaigns for the ACLU of Nevada, told High Times. “However, the Nevada constitution provides that cannabis has legal medical uses — the constitution even lists a number of diagnoses for which marijuana can be used as a treatment.”

According to the Drug Enforcement Administration (DEA), Schedule 1 substances are classified as having “no currently accepted medical use and a high potential for abuse”. Cannabis is classified alongside drugs such as heroin or LSD.

Clark County District Judge Joe Hardy ruled that listing cannabis on Schedule 1 is inconsistent with the Nevada Constitution because the Constitution expressly states that cannabis has medicinal uses.

The ACLU Nevada represents the Cannabis Equity and Inclusion Community (CEIC). The case, CEIC v. Nevada Board of Pharmacy, was filed in Clark County court last April, according to a press release.

“Instead of treating cannabis like alcohol and removing it from the state’s controlled substances list, Nevada is ignoring the state constitution and the will of the people,” the ACLU Nevada stated at the time.

The ACLU Nevada is suing the board on behalf of Antoinette Poole, who was convicted of possessing cannabis. Poole was arrested in 2017 and charged with a Class E felony.

While the judge ruled in Poole’s favour, the debate isn’t over: The judge didn’t rule on whether or not the board has the power to regulate cannabis, because he’d asked both sides to submit orders on the subject for review.

BREAKING—Clark County Judge Joe Hardy rules that the Nevada Board of Pharmacy’s designation of cannabis as a Schedule 1 substance violates the Nevada Constitution.

— ACLU of Nevada (@ACLUNV) September 14, 2022

“A finding of unconstitutionality of the particular statute underlying a conviction could be a basis for overturning that conviction by a case specifically seeking that relief,” Athar Haseebullah, ACLU Nevada executive director, told Nevada Current. “Nevertheless, future charges must not be brought under this amorphous termination category, which lists cannabis alongside heroin.”

Plaintiffs argued that the board could not restrict cannabis because it is unrestricted under state law.

“The board can only classify a substance under the restrictions imposed by the legislature if that substance, one, has a high potential for abuse, and then, two, either has no medical use or is not safe to market,” ACLU Nevada Legal Director Chris Peterson told the judge.

Brett Kandt, General Counsel of the Board of Pharmacy, argued that the federal status and designation of cannabis as a Schedule 1 substance should also apply in Nevada.

In several other states that have legalized cannabis, lawmakers have directed the Board of Pharmacy to remove cannabis from Schedule 1 as well.

Meanwhile, other efforts are taking place in the state to protect people convicted of cannabis-related charges.

Last month, three nonprofits — the Legal Aid Center of Southern Nevada, Nevada Legal Services, and Code for America — were awarded a total of $1.2 million in cannabis tax revenue by the Clark County Commission. Code for America, which received $200,000 of this amount, will investigate how to implement automatic sealing of records.

The Bay Area-based Code for America in California has a few months to figure out what it would take to expedite this process. Some hope it could draw attention to Assembly Bill 192, also known as the Nevada Second Chance Act, passed in 2019.