DETROIT, MI — Sherry Hoover, who has late-stage cancer, filed her lawsuit on behalf of all Michigan patients struggling to obtain medical marijuana amid a shortage, her attorney says.
Hoover, of Troy, who is represented by Bloomfield Hills-based attorney Michelle R.E. Donovan of the Butzel Long law firm, sued the Michigan Licensing and Regulatory Agency (LARA) in federal court on June 5.
U.S. District Judge Paul D. Borman on Jan. 15 dismissed the lawsuit that included due process, property right claims under the Michigan Constitution and Fourteenth Amendment, as well as allegations that LARA violated the 2008 voter-passed Michigan Medical Marijuana Act by depriving Hoover reasonable access to medicinal marijuana products.
“She fought a courageous battle and she did this for all the patients in Michigan,” said Donovan, who isn’t planning to appeal.
Hoover’s lawsuit asked a federal court to order LARA to extend through 2019 a previously eliminated exception allowing untested marijuana to be sold to medical marijuana patients.
Despite potential health risks posed by consumption of untested marijuana products, the since-disbanded Medical Marijuana Licensing Board allowed untested products into the licensed market while it worked to build a network of licensed growers, processors, testing labs, transportation companies and provisioning centers.
Caregivers aren’t legally allowed to sell to provisioning centers, but state officials promised not take disciplinary action against businesses that bought their products.
At the time Hoover’s lawsuit was filed, nearly 93% of the marijuana in the licensed medical marijuana market came from caregivers, according to data obtained by MLive. As of December, that figure had decreased to 62.5%, according to Marijuana Regulatory Agency data.
The defunct Medical Marijuana Licensing Board received a significant amount of criticism for the perceived slow pace at which new medical marijuana businesses were being licensed. Gov. Gretchen Whitmer disbanded the Medical Marijuana Licensing Board April 30 and replaced it with the Marijuana Regulatory Agency.
On Hoover’s behalf, Donovan also filed an emergency motion for a restraining order to block LARA from eliminating the caregiver exception. The federal judge denied that request on July 18.
The case became steeped in ambiguity due to the contrast between Michigan law, which legalized medical marijuana in 2008 and recreational marijuana in 2018, and federal law, which designates marijuana an illegal, highly addictive, dangerous drug with no accepted medical use.
The lawsuit said Hoover “should have the right to decide whether she is willing to purchase untested medical marijuana at her own risk until the supply of tested medical marijuana is sufficient for all licensed provisioning centers.”
Hoover claimed couldn’t find certain medicinal marijuana products her doctor recommended she use to treat her illness, including CBD-THC gummy cubes; high-THC medicated pain balm; Sunshine Kush, a strain of flower; Purple Punch Rick Simpson Oil and specialty 200 mg ribbon chews, a type of edible.
The number of licensed medical marijuana businesses was “clearly insufficient to supply the tens of thousands of pounds of medical marijuana for the 300,000-plus Michigan medical marijuana patients per month, leaving medical marijuana patients without a means to fulfill their medicinal needs,” the lawsuit said.
The lawsuit noted products Hoover sought were and remain available through unlicensed, black-market marijuana businesses; however, her medical marijuana card could be revoked should she shop at them.
Until May 31, dispensaries were allowed to purchase products from registered caregivers and sell it untested to registered to medical marijuana patients. The exception required customers sign waivers acknowledging the marijuana hadn’t been tested for contaminants.
The caregiver exception wasn’t extended and expired.
Current rules limit purchases from caregivers to licensed growers or processors. The purchasing business must then have the product tested before it can legally be made available for sale in the recreational or medical marijuana market. State law for both medical and recreational marijuana requires testing for a long list of heavy metals, pesticides, molds and other contaminants.
Caregivers are allowed to have up to five designated patients for whom they grow 12 marijuana plants each. They are also permitted to possess up to 2.5 ounces per patient.
Donovan said Hoover does not have her own designated medical marijuana caregiver.
As far as Hoover’s due process property claims under the 14th Amendment, Borman in his dismissal said the “Supremacy Clause unambiguously provides that, if there is any conflict between federal and state law, federal law prevails.”
Hoover argued her Michigan medical card, which allowed her to purchase medical marijuana, was the property she was being deprived since the products she needed were unavailable, in part due to state regulations.
“ … Although the (Michigan Medical Marijuana Act) provides narrow exceptions for marijuana use involving qualified patients and care givers, under the federal Controlled Substances Act, it is illegal for any private person to possess marijuana for any purpose,” Borman wrote. “Thus, under federal law, marijuana is contraband per se, which means that no person can have a cognizable legal interest in it.”
— Gus Burns is the marijuana beat reporter for MLive. Contact him with questions, tips or comments at email@example.com or follow him on Twitter, @GusBurns. Read more from MLive about medical and recreational marijuana.
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