NJ Biz reports
A New Jersey appeals court determined that the state’s recreational cannabis law is not preempted by federal marijuana laws and that both can coexist. In a May 1 opinion, a three-judge panel affirmed a lower court ruling against a group of Highland Park residents who believe the borough violated federal law by allowing the sale of adult-use marijuana because the substance remains federally illegal.
The appellate panel – which comprised Judges Jack Sabatino, Mark Chase and Robert Vinci – held that the federal Controlled Substances Act does not preempt New Jersey’s Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act.
Additionally, the court affirmed a prior ruling that Highland Park’s cannabis ordinances are authorized by CREAMMA and therefore are not preempted by the CSA. “It is not impossible for New Jerseyans to comply with the CSA after the enactment of CREAMMA. CREAMMA does not require any person to possess, purchase, or use marijuana. The statute does not require any business to sell marijuana, or any municipality to adopt, as here, an ordinance to allow marijuana dispensaries within its borders. The residents and marijuana businesses of this state act at the risk that their activities might be prosecuted by federal authorities,” the panel wrote.
New Jersey’s law would also not get in the way if federal officials decided they wanted to pursue cases more aggressively for violating federal cannabis laws and both codes can exist simultaneously, the panel said.
The judges also found that plaintiffs provided no evidence that CREAMMA has proved an impediment to federal enforcement. And the opinion cited the federal government’s shifting tone on cannabis, which has included advising local officials to deprioritize prosecution of “marijuana activities” that are legal under state law. Since 2014, Congress has approved a budget amendment that prohibits the Department of Justice from using its funds to prevent states from implementing medicinal cannabis laws.
New Jersey’s decision is similar to other state court rulings in recent years, the judges said.
Those cases include a 2020 ruling by the Oklahoma Supreme Court that the state’s proposed constitutional amendment allowing, regulating and taxing the use of recreational marijuana would not be preempted by the CSA.
Elsewhere, in 2021, the Supreme Court of New Hampshire ruled that its state laws concerning reimbursement of the cost of medical marijuana did not conflict with the CSA. And in 2024, a New York state court rejected a challenge to its state cannabis statute regulating marijuana dispensaries and on-site consumption businesses.
Return to sender
The court also revived state law claims brought by the plaintiffs challenging the municipality’s cannabis ordinances, giving them another chance to express their objections.
The ruling comes about six months after Middlesex County Superior Court Judge Bina Desai dismissed the lawsuit for failing to state a claim on which relief can be granted. Heard March 18, the appeal was opposed by the New Jersey Attorney General’s Office, which said the plaintiffs lack standing to challenge CREAMMA.
The appellate panel rejected Desai’s findings that the complaint was time-barred because it was filed more than 45 days after Highland Park adopted the first of two cannabis ordinances.
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Appellate court rejects preemption challenge to NJ’s cannabis law
