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The Nevada Board of Pharmacy will face a legal challenge over its decision to classify cannabis as a Schedule I controlled substance, after a county judge denied a motion to dismiss the lawsuit.

The Nevada chapter of the ACLU brought the lawsuit against the Board of Pharmacy, claiming people are still being arrested for marijuana possession as a result of the pharmacy regulator’s move. This comes despite the fact that, under Nevada’s marijuana laws, medical use has been legal for more than 20 years while recreational use was legalized in 2016.

The civil liberties organization is suing the Board of Pharmacy on behalf of Antoinette Poole, who was convicted of cannabis possession, and seeking a judicial order compelling the pharmacy regulator to remove marijuana from its list of Schedule I substances, as well as any cannabis derivatives.

Schedule I substances are legally defined as having no accepted medical value, or which cannot be safely distributed.

Following voter approval of medical marijuana proposals at two consecutive elections, the Nevada Constitution was amended to allow 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.”

Brett Kandt, the Board of Pharmacy’s general counsel, argues the question of accepted medical value is a federal matter, while the issue of removing or including cannabis as a Schedule I substance does not conflict with the will of voters, the state’s constitution, or enabling legislation passed by lawmakers.

“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,” Kandt said.

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

Nevada ACLU attorney Sadmira Ramic has a different take. He agrees there was no need for the Nevada legislature to reschedule or deschedule cannabis, but argues that the Board of Pharmacy’s role is equally redundant following the creation of the Cannabis Control Board to regulate the marijuana industry.

Clark County Judge Joe Hardy listened to Kandt’s appeal for the lawsuit to be dismissed, as he argued that the real purpose of the Nevada ACLU is to deschedule cannabis.

“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 said.

Ultimately, Hardy determined the lawsuit would proceed.

“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,” Hardy concluded. “That’s always a possibility.”

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About the Author: Matt Brooks

Matt is a journalist from San Francisco who has specialized in marijuana policy for more than six years.

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