By: Melissa Chapaska

On April 14, 2014, Maryland legalized cannabis for medicinal use. Patients were hopeful that the Maryland Medical Cannabis Commission’s grower/processor pre-approvals in August signaled an end to the nearly 3 year wait for medical marijuana program implementation – until legal challenges to geographic and racial diversity decisions by the Maryland Medical Cannabis Commission threatened to postpone implementation of Maryland’s medical marijuana program indefinitely.

The Commission’s first set of challenges came from Green Thumb Industries and Maryland Cultivation and Processing, prospective cultivators that were ultimately denied licenses by the Commission.  While Green Thumb was initially ranked 12th in the Commission’s preliminary evaluation of qualifications and Maryland Cultivation and Processing initially ranked eighth, both companies were inexplicably removed from the Commission’s list of final licensees.  The companies are seeking a ruling from the court directing the Commission to award the companies grower/processor license pre-approvals.  However, before deciding the merits of the jilted companies’ complaints, the court will address the Commission and Attorney General’s use of the deliberative process privilege, which protects internal processes of executive agencies from disclosure or discovery, to block Plaintiffs from obtaining information related to their license denial.  Specifically, Plaintiffs are challenging the Attorney General’s objections to the deposition testimony of Deborah Miran, the only member of the Maryland Medical Cannabis Commission subcommittee to vote against removing Green Thumb Industries and Maryland Cultivation and Processing from the final list of pre-approved grower/processors. If the court determines that the deliberative process privilege does not apply, the public may gain unique access to the highly contested internal decision process employed by the Commission.

In addition to pending litigation, the Commission continues to face criticism from lawmakers for its evaluation process. For instance, law makers criticize the Commission for failing to consider diversity as a factor when evaluating applicants vying for a limited number of highly-coveted medical marijuana grower/processor licenses. However, the Commission continues to defend its evaluation process, maintaining that it employed an impartial algorithm in evaluating applications and the attorney general’s office advised the Commission against considering diversity as a factor.  Specifically, the Commission was advised that state officials must demonstrate racial disparities in the medical marijuana industry or similar industries before offering racial preferences in licensing.  While the Commission announced that it would employ a diversity consultant to advise on the feasibility of a diversity study, lawmakers are considering different, legislative approaches to resolving Maryland’s medical marijuana diversity issue.

One proposed measure, Senate Bill 0800, would provide a “second-chance” to grower/processor applicants, such as Green Thumb Industries and Maryland Cultivation and Processing, by providing for 5 additional grower/processor licenses and requiring the Commission to “review the applications for a medical cannabis grower license that were submitted to the commission in 2016 by the submission date and for which an application fee was paid, regardless of whether the application was ranked or scored by the Regional Economic Studies Institute” and specifically directing the Commission to “award stage one pre–approval to at least one applicant located in Southern Maryland, which includes Charles County, Calvert County, and St. Mary’s County.”

In addition to legislation addressing the 2016 Maryland grower/processor licensing processing, the Maryland legislature has also proposed either completely dismantling, or changing the membership of the Medical Cannabis Commission.  For example, Senate Bill 0999, seeks to dismantle the Maryland Medical Marijuana Commission and transfer responsibility of the program to the state’s health department, similar to Pennsylvania’s medical marijuana program structure. Paul Davies, chairman of the Commission, denounced this bill as “threaten[ing] the quality of the program and its very existence.”   Under other proposed legislation, like House Bill 0487 and cross-filed Senate Bill 0267, the Maryland Cannabis Commission would remain responsible for licensing medical marijuana organizations, but with new membership requirements.  Specifically, the cross-filed bills would require membership of the Commission to reflect the racial diversity of the State and would require confirmation of Commission members by the Maryland State Senate.

While the Maryland Medical Cannabis Commission suggests that medical marijuana will be available to patients as soon as this summer, it remains uncertain whether pending legal challenges and legislation will delay program implementation past the Commission’s timeline.

Be sure to subscribe to the Cannabis Law PA Blog and follow us on Twitter for up-to-date information as implementation of Maryland’s medical marijuana program and subsequent legal challenges move forward.