By: Melissa Chapaska

On April 14, 2014, Maryland legalized cannabis for medicinal use. However, Maryland’s program has faced a long road to implementation and patients are still without medical marijuana access despite legalization over 2 years ago. This summer, those suffering patients finally began to see the light at the end of the tunnel when the Maryland Medical Cannabis Commission awarded “Stage One license preapprovals” to 15 grower and 15 processor applicants spanning 16 counties and Baltimore City.

While each preapproved company must still undergo a number of implementation, financial due diligence, and final inspection requirements within one year to receive a formal license, the preapprovals were a step in the right direction towards finally getting medical marijuana in the hands of patients in Maryland – or so it seemed until lawsuits and proposed legislation threatened to delay program implementation indefinitely.

The first threat to program implementation occurred on September 19, when a grower applicant, Green Thumb Industries-Maryland, filed suit against the Medical Cannabis Commission, calling the suit “a last resort” after the Medical Cannabis Commission removed the company from a list of preapproved growers when the ranking process changed to factor in geographic diversity. Another rejected company, Maryland Cultivation and Processing LLC, petitioned to join Green Thumb’s lawsuit. Both companies seek to have a judge order the Commission to reinstate their license pre-approvals.

At the same time, legislators and rejected companies began to question the Commission’s decision to not consider racial diversity as a factor in awarding licenses. Out of the 15 grower licenses awarded, none were awarded to companies led by African Americans, despite language in the state’s medical marijuana law instructing regulators to “actively seek to achieve” racial and ethnic diversity in the industry.

Defending its decision to not use race as a consideration when awarding preapprovals, the Commission cites to a 2015 advice letter it received from the Attorney General’s office that said factoring-in race in awarding licenses in a new industry without a history of racial discrimination is likely unconstitutional. In response, the Maryland Attorney General’s office claimed that the Commission could have researched and used evidence of racial disparity in industries similar to medical marijuana to overcome the constitutional issues raised in the Attorney General’s 2015 letter.  In an open letter, the Chairman of the Maryland Medical Cannabis Commission expressed confusion at the Attorney General’s comments and accused the Attorney General of giving conflicting advice about whether the state should consider racial diversity in its process.  The Chairman further defended the Commission’s double-blind review process, Nobel Prize-winning algorithm, and commitment “to seeking and promoting racial diversity and minority inclusion” by encouraging medical marijuana businesses to “engage and recruit minority owners, investors and employees where practical.”

However, despite the Commission’s justifications, the Legislative Black Caucus expressed the need to pass emergency legislation to halt implementation of the medical marijuana program until issues involving racial diversity in the award of licenses are solved.  President of the Caucus, Cheryl D. Glenn (D-Baltimore), argues that the best way to ensure fairness is a complete re-do of the grower/processor licensing process. While Governor Larry Hogan has not called for a complete re-do of the application process, he has expressed concern about the lack of racial diversity in the licensing process.

Adding to the growing number of legal roadblocks, on October 31, Alternative Medicine Maryland filed a lawsuit in Baltimore Circuit Court asking a judge to prevent issuance of final licenses and to instruct the Commission to conduct a new licensing process that considers racial diversity.  Since the filing of this lawsuit, the Maryland Medical Cannabis Commission announced its hiring of a diversity consultant to review “the whole big picture” of diversity in Maryland’s medical marijuana industry.

Time will tell whether these lawsuits will serve as cautionary tales for regulators in other states with geographic and racial diversity requirements, like Pennsylvania, as they begin implementation of their programs. For now, one thing is certain – as companies and regulators continue to battle over racial and geographic diversity, medical marijuana access for suffering patients in Maryland will likely face more