A New Jersey appeals court panel ruled earlier this month that the state’s Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (CREAMMA) is not preempted by the federal Controlled Substances Act (CSA) and that both can coexist, NJBiz reports. In the ruling, the panel wrote that “It is not impossible for New Jerseyans to comply with the CSA after the enactment of CREAMMA” because the state law “does not require any business to sell marijuana, or any municipality to adopt, as here, an ordinance to allow marijuana dispensaries within its borders.”
The panel, however, warned that “residents and marijuana businesses of this state act at the risk that their activities might be prosecuted by federal authorities.” The judges also concluded that the plaintiffs provided no evidence that the New Jersey adult cannabis use law has impeded the enforcement of federal law.
The plaintiff in the lawsuit was Mary Botteon, a resident who has filed other legal actions against the state and the town of Highland Park, where she resided, challenging CREAMMA. In February, she brought a separate lawsuit challenging Highland Park’s awarding of a license for cannabis distribution, arguing that the ordinances violate federal law.
In an interview with NJBiz, Ryan Magee, a partner at McCarter & English LLP, called the decision “a significant win not only for the defendants in the case but also for New Jersey’s emerging cannabis industry as a whole.”
“In its analysis, the court placed emphasis on the federal government’s evolving positions with respect to cannabis,” he said in the report. “The court noted [Department of Justice]’s non-enforcement position as to lawful state cannabis markets and Congress’s own annual appropriations riders that prohibit DOJ from allocating funds to prosecute conduct that is legal under state medical marijuana laws. Simply put, if the federal government wanted to more aggressively prosecute violations of the CSA – it could – and CREAMMA does not bar it from doing so.”
The appeals court panel did, however, resurrect other state law claims brought by the plaintiffs that had been rejected by a Superior Court judge late last year. Those claims purport that CREAMMA has led to nuisance issues.
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