Retail Marijuana Law in Nevada
Nevada voters passed the Nevada Marijuana Legalization Initiative on November 8, 2016 rendering retail marijuana sale and use legal in Nevada. Since then, Nevada regulations regarding the implementation and enforcement of the sale and use of retail marijuana have been dynamic, particularly at local levels. As retail marijuana law in Nevada becomes more refined, you might be left wondering where this leaves you as a patron or business owner.
Connor & Connor PLLC is a law firm specializing in the field of Nevada marijuana law, both medical and recreational. Its attorneys provide legal services and expertise to constituents of the marijuana industry ranging from eminent businesses to patrons and patients. Throughout their dealings, they have found that some questions about retail marijuana recur more than others. The following is a list of frequently asked questions regarding retail marijuana law.
Is Retail Marijuana Legal in Nevada?
The short answer to this question is yes, however the legality of retail marijuana in Nevada is subject to several constraints. Perhaps a better way to pose this question would be “for whom is retail marijuana legal in Nevada?” and “according to whom?”
Legal For Whom?
The 2016 Ballot Initiative, or Question 2, mandated that only persons over the age of 21 may consume or purchase retail marijuana. This restriction has remained consistent since the inception of legal retail marijuana in Nevada. Nevada’s commitment to keeping marijuana out of the hands of minors is reflected in its imposition of a felony conviction on those who sell or otherwise distribute marijuana to minors.
Additionally, an individual who is not a medical marijuana patient cardholder is not permitted to carry more than one ounce of marijuana flower on their person at a time or 1/8th of an ounce of marijuana concentrate. Generally, individuals are not permitted to grow their own marijuana in Nevada, except that those residing more than 25 miles from their nearest retail marijuana store may cultivate up to six plants. Regardless of how one is permitted to acquire marijuana, no individual may consume or display marijuana in public in Nevada.
Businesses permitted to sell, produce, or cultivate retail marijuana (and independent testing laboratories) are required to have a marijuana establishment license conferred by the Nevada Department of Taxation. The screening process for a marijuana establishment license is intensive, licenses are highly coveted, and currently there are only a finite number of licenses outstanding. In other words, one cannot simply come to Nevada, set up shop, and start growing and selling marijuana.
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Legal according to Whom?
According to Nevada state law, the consumption and sale of marijuana is permitted, subject to the conditions outlined above. However, according to federal law, the sale and use of Marijuana is prohibited pursuant to the Controlled Substance Act (CSA), which lists marijuana as a schedule one drug. If you’re unfamiliar with the United States constitution, Article VI includes a Supremacy Clause declaring federal law to be the “supreme law of the land” superseding all state law that may conflict with it.
Despite this apparent conflict between federal and state law, it was in virtue of the Cole Memo, issued by then Attorney General James M. Cole in the summer of 2013, that the federal government tolerated states’ medical marijuana ballot initiatives and their subsequent recreational marijuana ballot initiatives. Essentially, although marijuana remained a schedule one drug on the CSA, the Cole Memo directed federal prosecutors to enforce the CSA with specific goals in mind (such as keeping marijuana away from minors, ensuring the industry did not support criminal enterprises, etc.) rather than prosecuting all violations pertaining to marijuana indiscriminately. The result: states that had medical and/or recreational marijuana programs were effectively permitted to facilitate and support marijuana industries.
The Cole Memo has since been rescinded. On January 4, 2018, Attorney General Jeff Sessions directed prosecutors that they should no longer enforce the CSA in consonance with the goals of the Cole Memo. Instead, Prosecutors are now to “follow the well-established principles that govern all federal prosecutions.” However, federal prosecutors retain their prosecutorial discretion to choose whether or not to bring charges for marijuana-related violations of the CSA. Federal prosecutors in states like Colorado, for example, have declared that they would continue to uphold the goals of the Cole Memo.
While Nevada’s federal prosecutors have remained silent as to their attitude towards the rescindment of the Cole memo and how they will proceed in the post-Cole Memo United States, they have yet to bring charges against businesses or persons in a way that would indicate that they have abrogated the goals of the Cole Memo.
Thus, while according to federal law the sale and consumption of marijuana is prohibited, prosecutorial discretion enables Nevada to persist in permitting the sale and consumption of both medical and retail marijuana.
Although there appears to be no imminent threat to Nevada’s marijuana program, federal law will invariably be enforced in certain situations, which may include (but not be limited to):
- When marijuana is transported across state lines, even between states where retail marijuana is legal. In no case are persons permitted to bring marijuana with them into airports or onto airplanes.
- When marijuana is given to minors.
- When marijuana is brought onto federal lands, including any national parks in Nevada.
What Types of Marijuana Are Legal?
Marijuana may be consumed in any form consistent with Nevada law. As you navigate the marijuana industry, you will find that consumable marijuana and marijuana products come in many different forms or “types.” You may purchase tinctures, which contain THC dissolved in alcohol administered via a “dropper.” You may purchase and consume edibles, which are food products infused with marijuana. You may consume marijuana concentrates, including wax, shatter, or oils. And you may even buy topical products like lotions or lip balms that administer THC when applied to the skin. These are but a few of the methods of consumption permitted by Nevada law. As the industry grows, new avenues of consumption will be developed, and Nevada lawmakers will have to decide whether they will allow products capitalizing on these avenues to be sold.
In terms of taxonomy (the science of classifying organisms), any species of the genus “cannabis” may be consumed in Nevada, whether directly by smoking, or in the form of a product derived from a cannabis species. These species include cannabis sativa, cannabis indica, and the lesser-known cannabis ruderalis, although cannabis ruderalis is less promulgated due to its low THC (the active ingredient in marijuana that causes intoxication, or the “high”) content.
In terms of the marijuana products that are legal, individuals are free to consume marijuana in any form made available to them. Producers and dispensaries/retail marijuana stores conversely have limits on what products, or “types” of marijuana they may sell.
For example, marijuana production companies and dispensaries/retail marijuana stores may not produce or sell:
- Any product containing more than 10 milligrams of THC per dose, or more than 100 milligrams of THC per package.
- Any product taking the form of products marketed to children, including (but not limited to) lollipops and ice cream.
- Any product resembling a fictional character or cartoon that may appeal to children.
- Beyond these restrictions, production companies and dispensaries/retail marijuana stores must obtain approval from the Department of Taxation before producing or selling any product.
I have an idea for a retail marijuana business venture. How do I acquire a license?
The Department of Taxation only issues licenses for a limited time after a call for applications is issued. However, only a finite number of licenses will be issued, and determining who will receive the newly minted licenses is a competitive process. Your best bet would be to find someone who currently possesses a license and make them an offer for ownership interest. Be warned: they do not come cheap.
Is Consuming Retail Marijuana Safe?
Whether or not marijuana is safe to consume is a highly debated and contentious issue. While consuming marijuana cannot be said to be safe withal, as many choose to consume it with tobacco or through inherently unsafe means, some methods are certainly safer than others. Smoking arguably damages your lungs whether filtered through water or smoked as a marijuana cigarette (“joint”). Consuming marijuana in the form of an edible avoids contact with your lungs altogether, circumventing any harm—at least as far as your lungs are concerned.
Studies show that THC levels in marijuana products and flower today are at an all-time high, at exponentially greater levels than their 20th century counterparts. Because the higher levels of THC are a new development, the long-term psychological effects of marijuana are speculative and disputed.
One thing is for certain, however. Legal retail (and medical) marijuana in Nevada will always be safer to consume than marijuana purchased from the black market. All marijuana flower and products must pass stringent health requirements prescribed by Nevada law, including testing conducted by independent testing laboratories. These laboratories screen for trace amounts of heavy metals, bacteria like E. Coli, and other microscopic substances down to parts per million. Those selling marijuana on the black market can never ensure this level of scrutiny. If you consume marijuana purchased from the black market rather than a dispensary/retail marijuana store, make no mistake: you have no guarantee of quality assurance. Even after the marijuana has been tested and distributed to dispensaries/retail marijuana stores, Nevada law prescribes proper methods of storage to continue effectuating quality assurance.
Is there any difference between retail and medical marijuana?
Medical marijuana and retail marijuana differ only in name. For the most part, if you purchase marijuana from a dispensary/retail marijuana store, you are purchasing the same flower or product that otherwise could have been sold to a medical patient.
The difference lays not with the marijuana or products legally available, but in the amount of flower or product a medical patient can purchase as opposed to a recreational user, in the rate at which the sale will be taxed, and in the age at which one may purchase marijuana. Medical Marijuana patients with a valid medical card may purchase up to 2.5 ounces of marijuana or marijuana concentrate within a two-week period whereas recreational customers may only purchase up to one ounce at a time or 1/8th of an ounce of marijuana concentrate. An excise tax of 10% will be added to every retail purchase; this tax will not be added to medical purchases. Finally, a patient may acquire a medical card at at any age, and caregivers can acquire licensure in the form of a medical card to administer marijuana products to persons under 18 years of age.