717-703-0804
Terpenes Matter
The lawsuit, initiated on behalf of eight Pennsylvania cannabis operators, concerning DOH’s 2022 terpene recall mandate is still pending in the Commonwealth Court. On March 8, 2023, oral argument was heard by the Commonwealth Court in MMAPS v. Denise Johnson, et al., 58 MD 2022 (“MMAPS Litigation”). The petitioners in the MMAPS Litigation sought summary relief that (i) DOH didn’t have the statutory authority to impose DOH’s new “approved for inhalation by the FDA” and (ii) that the manner in which the recall was initiated (by DOH) was impermissible; DOH has sought summary relief as to all counts the petitioners alleged. It is expected that a decision in this case could be issued any day. It is also expected that the party that does not prevail will appeal the Commonwealth Court’s decision to the PA Supreme Court. (The PCC filed an amicus brief in this litigation).
2‐Lab Requirement Litigation
This lawsuit filed by seven industry MMOs in the Commonwealth Court on March 4, 2023, (104 M.D. 2023) sought to enjoin DOH’s permanent regulation, 28 Pa. Code § 1171a.29(c)(1)‐(2). This regulation, the “2‐Lab Requirement”, mandates that separate labs be used for the harvest testing and final product testing phases. The Commonwealth Court first, on March 4, granted our preliminary injunction halting the enforcement of the 2‐Lab Requirement. On May 10, 2023, the Court decided in the industry’s favor finding that the 2‐Lab Requirement exceeded DOH’s authority under its enabling statute. DOH has appealed to the Pennsylvania Supreme Court (76 MAP 2023). The parties are currently briefing the matter with oral arguments expected in early 2024.
Kahn RTKL
In June 2023, Mr. Kahn, a right‐to‐know requester, requested a substantial amount of grower/processors’ testing data (AP‐2‐23‐1423) from the DOH. Again, by coming together as a united group, ten industry participants from growers/processors to labs, were able to successfully present credible legal arguments to the Office of Open Records and successfully defeat this effort to expose proprietary and confidential information.
Keystone ReLeaf RTKL
On July 7, 2017, Keystone ReLeaf filed a Right To Know Law (RTKL) requesting, among other things, unredacted applications from various Phase 1 permittee recipients. DOH denied this request sought. Keystone ReLeaf then filed an appeal with the Office of Open Records (OOR). On October 4, 2019, OOR issued a Final Determination (AP 2017‐1667) that granted limited access to unredacted applications. In November 2019, numerous appeals challenging the Final Determination were filed in the Commonwealth Court and consolidated. ThereaŌer, DOH, and Keystone ReLeaf engaged in years-long negotiations to settle Keystone ReLeaf’s administrative appeal of its Phase 1 applications denials and rejections. On or about November 20, 2022, DOH and Keystone ReLeaf settled the related administrative appeals in a global settlement that included Keystone ReLeaf withdrawing its request for the Phase 1 unredacted applications and rendering the OOR’s Final Determination void ab initio. On October 12, 2023, the Commonwealth Court issued an order to this effect and discontinued and marked closed the various appeals stemming from the OOR’s Final Determination.
Sara Bloch
Cannabis Law PA is representing Sara Bloch and Mary Cease, pro bono, in a suit brought in the United States District Court Western District of Pennsylvania against the U.S. Housing and Urban Development (2:23‐cv‐01660‐NR) for discrimination against low‐income individuals seeking Section 8 Housing who are legally taking medical marijuana. The HUD’s Answer to our complaint is due December 19, 2023.
Mandamus Litigation
Due to the increasing concern over DOH’s lack of timely responses when deciding the results of administrative litigation and certain requests for approval, Cannabis Law PA has filed several mandamus actions with the Commonwealth Court. These mandamus actions request the Commonwealth Court to require DOH to make decisions on litigation pending before the agency.
