We’ve written extensively of late about both California’s Medical Marijuana Regulation and Safety Act (MMRSA) and about the nationwide uptick in cannabis-related litigation (see here, here and here), so it comes as no surprise that there is already a lawsuit challenging the state constitutionality of California’s new marijuana legislation.
As I explain more fully below, this is not a good case for the cannabis industry. Not at all.
Please don’t ask courts to declare all state legalization illegal.
Passage of the MMRSA signals California’s shift away from a loosely regulated, ambiguous grey marijuana market to a robust, state law regulated medical marijuana regime. For us as lawyers, that’s a great thing. And it’s a great thing for marijuana business owners too, since a solid state law regulatory scheme that meets the Federal Department of Justice’s requirement of “robust regulation” goes a long way towards keeping the Feds away.
But not everyone is celebrating California’s adoption of the MMRSA. Tight regulation inevitably means bad actors will be weeded out. It also means, in this case, that patient access will not be as loose and free as it has been under the current system. This is a tradeoff. The big benefit of a regulated system for California patients means things like product testing, safety and quality control requirements will be implemented and enforced.
Armstrong, plaintiff in the lawsuit against the State of California and operator of a medical cannabis collective in Santa Clara County, alleges that “the MMRSA violates the California Constitution because it amends a voter initiative without voter approval.” The complaint goes on to allege that the MMRSA “restricts the manner in which ill Californians are able to possess and grow marijuana for medical purposes and allows for criminal penalties and professional discipline for physicians who recommend marijuana under certain circumstances.”
Though we agree that the MMRSA does contemplate additional restrictions on cultivating and distributing marijuana in California, we do not believe that the intent of the voter initiative was to provide for unfettered and unregulated access to medical cannabis. The initiative and resulting regulations just did a poor job of creating a sufficient, logical regulatory framework. The MMRSA and the resulting implementation of a robust regulatory scheme is attempting to address the very real threat, caused by this insufficient framework, of federal intervention.
Putting aside, however, the main issue of the case involving violation of the California state constitution, the plaintiff in this case also raises the issue of federal preemption. Never have we seen a pro-pot plaintiff raise this issue in a lawsuit, though we have seen the issue raised in cases advocating for cities’ rights to ban state-legal commercial marijuana activity. In those cases, courts have punted the issue, deciding the case on the narrowest grounds possible. Though this case will likely be resolved on state law grounds, it is incomprehensible to us why the plaintiff in this case opted to raise the federal preemption issue. By doing so, they are essentially arguing that NO state can legalize in ANY manner because the federal government treats cannabis as illegal and federal law controls (preempts) state law.
We’ve said it before: Bringing a bad lawsuit in no way helps the cause.