By Aaron Rosengarten – March 17, 2023

On March 4, 2023, Attorneys from Hawke McKeon & Sniscak, d/b/a Cannabis Law PA filed a lawsuit against the Department of Health (Department) seeking to prevent the Department from enforcing its regulation located at 28 Pa.Code § 1171.29(c)(1)-(2), which requires grower processors to use two different laboratories to conduct the mandatory testing that is required under the Medical Marijuana Act – one test at the initial harvest stage and a test at the final processing stage (2-Lab Requirement).

By way of background, despite Commissioners’ concerns about the 2-Lab Requirement, the Department’s permanent regulations were approved by the Independent Regulatory Review Commission on October 20, 2022. The Department published its permanent regulations, including the 2-Lab Requirement, in the Pennsylvania Bulletin on March 4, 2023, making them immediately effective, giving industry stakeholders no time to figure out how to comply with the 2-Lab Requirement.

The Department did not publish any guidance on how its 2-Lab Requirement would be implemented or what would happen when the inevitable disparity in testing results between the two different laboratories occurred.  The Department did not even publish guidelines as to what grower/processors and medical marijuana testing laboratories were supposed to do about the thousands of samples currently sitting in labs that were immediately in violation of the 2-Lab Requirement the moment it was effective. As a result, Cannabis Law PA filed a lawsuit, on a Saturday, in the Commonwealth Court seeking emergency relief by way of a preliminarily injunction requesting the Court immediately enjoin the Department from enforcing its 2-Lab Requirement. On that same day, the Commonwealth Court granted Cannabis Law’s request preliminarily enjoining the Department from enforcing its 2-Lab Requirement pending the outcome of the litigation in this matter.

The Commonwealth Court issued an expedited briefing schedule to fast track the case and will be hearing oral argument on this matter during the Commonwealth Court’s May argument week. The Petitioners in this matter are: Green Analytics LLC, Standard Farms LLC, Curaleaf LLC, AES Compassionate Care LLC, Hanging Gardens LLC, Parea BioScience LLC, Pennsylvania Medical Solutions LLC.  The attorneys in this matter are Judith Cassel, Micah Bucy, Dennis Whitaker, and Aaron Rosengarten.

Cannabis Law PA will update this blog as the litigation progresses.