[Co-Author: Hanna Barker Mullin]

Cannabis: In Focus

• Election Round-up: Two States Approve, Three Reject Adult-Use Cannabis Referendums
• Northern District of New York Rules on Dormant Commerce Clause and Adult-Use Retail Licenses in New York
• Kansas Federal Court Dismisses Hemp Seizure Suit
• Federal Court Dismisses Florida Lawsuit Seeking Gun Rights for Medical Cannabis Patients

Election Round-up: Two States Approve, Three Reject Adult-Use Referendums

Midterm voters approved cannabis legalization ballot measures in Maryland and Missouri, but ballot questions in Arkansas, North Dakota, and South Dakota were defeated. Following the election, nearly half of Americans will live in states where cannabis has been legalized.

The ballot measures in Maryland and Missouri will allow individuals at least 21 years old to use cannabis. In the coming months, these states are expected to develop regulations to govern their new adult-use markets.

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

New York is set to begin adult-use cannabis sales later this year, and the Northern District of New York has issued an injunction barring certain regions of the state to issue adult-use retail licenses. The initial New York licenses were intended for entities with New York connections and for those affected by the state’s cannabis laws.

A Michigan-based retailer brought the suit claiming the New York rules violate the dormant commerce clause (DCC). The injunction covers the region where the Michigan retailer sought a license.

We are closely watching the development of DCC jurisprudence regarding cannabis. Earlier this year, the U.S. Court of Appeals for the First Circuit, which does not include New York within its jurisdiction, struck down Maine’s residency requirement under the dormant commerce clause. As we have written elsewhere, continued ambiguity between state and federal authorities regarding cannabis-related DCC concerns could prompt further litigation for regulated businesses and applicants.

Kansas Federal Court Dismisses Hemp Seizure Suit

The U.S. District Court for the District of Kansas dismissed a challenge to the state’s seizure of $120,000 worth of products and cash. The state claimed that the seized products were Schedule 1 drugs even though they contained only Delta-8 tetrahydrocannabinol (Δ8-THC), and not Δ9-THC in concentrations exceeding 0.3%.

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

Federal Court Dismisses Florida Lawsuit Seeking Gun Rights for Medical Cannabis Patients

A U.S. district judge dismissed a suit brought by Florida Agriculture Commissioner Nikki Fried and others which challenged the constitutionality of prohibiting medical cannabis patients from possessing firearms. We have been following the case over several months (see our past coverage here and here).

Federal law bars the sale of firearms to an “unlawful user” of controlled substances, including cannabis. State officials argued that, because Florida decriminalized cannabis use in 2016, medical cannabis patients should have the right to possess firearms.

The court dismissed the suit, focusing on the supremacy clause, saying “state laws cannot permit what federal law prohibits.”

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