Alison Malsbury
by

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.
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.

6 responses to “California’s New Medical Marijuana Legislation: Cue the Bad Lawsuits”

  1. a legal action attempting to challenge MMRSA? A BAD lawsuit? Nobody said ANYTHING about the state’s successful ability to REGULATE MEDICAL CANNABIS through SB420 THUS far- come on it’s the legislative process at work.
    I think Alison Malsbury missed the “issue” and it is frightening for a person in her profession to publish articles like this. She seems “unfamiliar” with the subject. I would NOT take advice from this attorney.

  2. to deny someone the right to bring a court action- or call it “A Bad Lawsuit” defies the simple right to freedom in this country….Alison Malsbury you should be ashamed of this article.

    • Um, no it doesn’t. Calling something “bad” in no way “denies a simple right to freedom.” You seem “unfamiliar” with the way the law works, so you will have to forgive me if I don’t take YOUR advice.

      And it is a bad lawsuit. It has very little ground to stand on, and the only person who will benefit from this at the end is the attorney who convinced this collective owner that he had a case to begin with. SB420 doesn’t “regulate” so much as it establishes penalties and limitations and MMRSA is simply finishing the job.

      MMJ advocates in CA need to take notice of what happened to MMJ in Washington: without a tightly regulated MMJ market, the powers that be are more likely to eliminate it in favor of a regulated Recreational market than they are to let it continue unfettered. Hubris will ultimately be its downfall.

      • I said “TO deny someone the right to bring a lawsuit is to deny freedom”….(especially coming from an attorney)…forgive me for not taking your comment more seriously, peepshow, but, obviously your reading comprehension skills need a bit of polishing…. Alison seems unfamiliar with the topic she is writing on….just another example of an attorney who thinks they KNOW cannabis law.
        Look at the picture on her article- for god’s sake-a nuclear explosion- that’s what we will look forward to taking advice from her..she disappoints me with her critique of 215- no knowledge at all…she demeans an incredible piece of initiative…. what the heck is going on-is this just another example of an attorney trying to make fast money off the industry by giving bad advice? There’s NO such thing as a bad lawsuit-A worthy advocate would KNOW that ( other than category “frivolous”) and the issue in this one is certainly NOT the fed govt’s stand on cannabis- not even close, Alison portrays this issue may be examined at state jurisdiction level?…this attorney discourages people’s freedom by her boastful and unfounded, uneducated remarks….everyone’s lawsuit is important to them….
        Peepshow- by the way…what law school did you attend? You certainly show your limitations EVEN comparing the state of Washington to CA’s cannabis progress….not similar at all!!!! Medical cannabis is solid in CA. Recreational needs medical – not the other way around…at least here…wake up- not sure where you are coming from? WE ALL BENEFIT from the lawsuit…(not that I even agree with it’s merit)- it certainly can’t DAMAGE us ….we benefit from the courage of that industry leader in bringing the action &he has the right to…simple concept- hard to grasp for someone like you, I guess?…someone who thinks SB420 sets penalties???? That tells me you’ve NEVER even read the legislation. But hey, by all means…Continue sticking up for your girlfriend…

  3. The fact that the MMRSA identifies with the Sherman food, drug
    and cosmetics law while simultaneously stating that marijuana is
    not recognized as a food or drug, and while marijuana is clearly
    not a cosmetic is extremely misleading and irrational. As well,
    the definition of commercial cannabis refers to an exception for
    patients and primary caregivers in section 19319.. their is no
    section 19319 (quite frankly I think it was done away with because
    they where blatantly rewriting the language of a voter intuitive)
    the lack of clear understandable definitions in this law make it
    extremely dangerous moving forward with the present care-plan of
    my patients. This wont be the only challenge, however “bad”
    it is only the beginning, the legislature thought patients wouldn’t
    spend equal thousands of hours pouring over their work they must off
    been smoking something good and not sharing any, people have been
    profiting and oppressing patients for 20 years, government and
    businesses alike, it’s time we as a people took control of those who
    think they have control over us, they work in our service, not in
    substitution of our power as tax paying voters!

    PS: the Sherman food drug and cosmetics law refers to federal laws
    that have nothing to do with marijuana, it’s not a medicinal food by
    federal law, they really created a mess and wasted untold amount of
    tax dollars protecting their own interests in the name of public
    health and safety! Send them to jail, not my family!
    Long live prop 215!

  4. The notion that the MMRSA is addressing a threat of federal intervation is pure and unadulterated satire due to the factt the federal governemnt already has ordered itself to stand down enforcments of drug policy in states who lagalized medical marijuana. this is a power move that was Bad Legislation

    “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
    “I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.”

    Thomas Jefferson

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