R.N. Collins:: Constitutional Challenges to Cannabis Licensing Schemes | Cannabis Law Report | Where to order Skittles Moonrock online

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Author RN Collins

The 4th in a series of 10 articles for cannabis law report

Contact RN Collins: https://www.linkedin.com/in/rn-collins/

Constitutional Challenges to Cannabis Licensing Schemes

Legislative Brief Series

I. Introduction

State cannabis licensing regimes have become fertile ground for constitutional litigation. In the three years between 2022 and early 2026, federal appellate courts across four circuits have weighed in on whether the dormant Commerce Clause constrains state cannabis licensing preferences—reaching directly conflicting results that now constitute a mature circuit split awaiting potential Supreme Court resolution. Simultaneously, challenges invoking the First Amendment, the National Labor Relations Act’s Supremacy Clause preemption, the Fourteenth Amendment’s Equal Protection Clause, and due process have proliferated as states have embedded social equity, residency, and labor peace requirements into their licensing frameworks.

This brief surveys the principal categories of constitutional challenge to cannabis licensing schemes across all fifty states, analyzes the leading cases in each category through February 2026, identifies the unresolved legal questions on which circuit courts have divided, and assesses the implications of pending federal rescheduling and the November 2025 hemp definition amendments for the constitutional landscape.

II. The Dormant Commerce Clause Circuit Split

A. Doctrinal Background

The dormant Commerce Clause—implied from the affirmative grant of commerce power to Congress in Article I, Section 8 of the Constitution—prohibits states from enacting laws that discriminate against or unduly burden interstate commerce, even in the absence of federal legislation.¹ At its core, the doctrine operates as an anti-protectionism rule: where a state law constitutes facial discrimination against out-of-state economic interests, it is subject to a virtually per se rule of invalidity and must be narrowly tailored to advance a legitimate, non-protectionist local purpose.²

The application of this doctrine to cannabis licensing has divided the federal courts on a threshold question: does the dormant Commerce Clause apply at all to a market that Congress has made categorically illegal under the Controlled Substances Act? The answer to that question now turns entirely on the circuit in which a challenge is filed.

B. The First Circuit: Northeast Patients Group v. United Cannabis Patients & Caregivers of Maine(2022)

The First Circuit became the first federal court of appeals to address the dormant Commerce Clause’s application to cannabis licensing in Northeast Patients Group v. United Cannabis Patients & Caregivers of Maine, 45 F.4th 542 (1st Cir. 2022).³ The case arose from a challenge to the Maine Medical Marijuana Act’s requirement that all officers and directors of medical marijuana dispensaries be Maine residents. High Street Capital, a Delaware corporation owned exclusively by non-Maine residents, sought to acquire a Maine dispensary and was blocked by the residency requirement. The First Circuit affirmed the district court’s holding in a 2-1 decision, concluding that Maine’s requirement was a facially protectionist regulation of an interstate market in violation of the dormant Commerce Clause.⁴

The majority rejected the argument that cannabis’s federal illegality removed it from dormant Commerce Clause scrutiny on three independent grounds. First, the court held that the mere existence of the CSA as an exercise of Commerce Clause power did not displace the negative implication of that power.⁵ Second, the court found that Congress had acknowledged the existence of an interstate medical marijuana market through its annual renewal of the Rohrabacher-Farr appropriations rider, without manifesting any intent to bless state protectionism within that market.⁶ Third, the court rejected the argument that federal courts should withhold remedies to protect an illegal market.⁷

Judge Gelpí dissented, arguing that courts should not apply constitutional doctrine to facilitate the very interstate commerce that Congress has prohibited—a position that would later animate the Ninth Circuit’s majority opinion.⁸

C. The Second Circuit: Variscite NY Four, LLC v. New York State Cannabis Control Board (2025)

On August 12, 2025, the Second Circuit issued a 2-1 decision in Variscite NY Four, LLC v. New York State Cannabis Control Board, 152 F.4th 47 (2d Cir. 2025), extending the First Circuit’s reasoning to adult-use cannabis licensing and applying the dormant Commerce Clause to invalidate a state social equity priority scheme.⁹ [NOTE:TheF4thpagination“152F4th47”isconfirmedbytheSupremeCourtcertioraripetitionfiledin[NOTE:TheF4thpagination“152F4th47”isconfirmedbytheSupremeCourtcertioraripetitionfiledinJensen v. Maryland Cannabis Admin., No. 25-766 (U.S. Dec. 23, 2025), which cites the Second Circuit’s decision at this reporter citation.]

The challenged program was New York’s “Extra Priority” licensing regime within the adult-use dispensary licensing process. Under the Extra Priority rule, applicants who resided in a disproportionately impacted community, had income below 80% of county median, and had a cannabis-related conviction under New York law (or a close relative who did) received additional priority in the license queue over applicants meeting only the first two criteria.¹⁰ The plaintiffs, Variscite NY Four and Variscite NY Five, were LLCs majority-owned by a California resident with a California marijuana conviction. They met the income and community-impact criteria but were categorically excluded from the extra priority because their conviction was not under New York law.¹¹

The Second Circuit vacated the district court’s denial of preliminary relief, holding that the Extra Priority rule facially discriminated against out-of-state applicants.¹² The majority held that a New York conviction requirement functioned as a residency proxy and that, under the dormant Commerce Clause’s strictest scrutiny for facially discriminatory laws, New York had failed to demonstrate the measure was the only means of advancing restorative justice goals.¹³ The court expressly found standing for the plaintiffs to challenge the December pool’s Extra Priority regime and the processing order of the November pool, but found no standing to challenge the earlier CAURD licensing program to which the plaintiffs had never applied.¹⁴

Chief Judge Livingston dissented, arguing that the dormant Commerce Clause should not constrain states in regulating markets that Congress has prohibited—directly foreshadowing the circuit split that materialized when the Ninth Circuit addressed the same question five months later.¹⁵

The Second Circuit’s ruling is binding in New York, Connecticut, and Vermont. It does not directly affect existing CAURD licenses but requires New York to redesign or suspend processing under the Extra Priority criteria.¹⁶

[GAP UPDATE — Jensen Certiorari Petition, December 2025]: On December 23, 2025, plaintiff Justyna Jensen filed a petition for certiorari in Jensen v. Maryland Cannabis Administration, No. 25-766 (U.S. Dec. 23, 2025), citing the dormant Commerce Clause circuit split among the First, Second, and Ninth Circuits and asking the Supreme Court to resolve whether the dormant Commerce Clause applies to cannabis licensing restrictions.¹⁶ᵃ The petition argues that the Fourth Circuit’s opinion—which disposed of the challenge on the merits without reaching the threshold question—was also substantively wrong and that the circuit split warrants immediate resolution. As of the date of this brief, the Supreme Court has not acted on the petition. The existence of a filed certiorari petition, combined with the Ninth Circuit’s March 2026 en banc petition deadline in Peridot Tree, substantially increases the likelihood that the Supreme Court will receive multiple vehicles to address the circuit split within the current term.

D. The Ninth Circuit: Peridot Tree WA, Inc. v. Washington State Liquor & Cannabis Control Board(Jan. 2, 2026)

On January 2, 2026, a unanimous three-judge panel of the Ninth Circuit issued a decision directly contradicting the First and Second Circuits in Peridot Tree WA, Inc. v. Washington State Liquor & Cannabis Control Board, No. 24-3481 (9th Cir. Jan. 2, 2026).¹⁷ The consolidated case challenged Washington State’s cannabis social equity licensing criteria—including a statutory six-month residency requirement under Wash. Rev. Code § 69.50.331(b) and points-based scoring criteria under the E2SSB 5080 program rewarding time spent in Disproportionately Impacted Areas—and Sacramento, California’s Cannabis Opportunity Reinvestment and Equity (CORE) Program, which reserved ten of forty dispensary permits for current or former Sacramento residents meeting income and prior cannabis-arrest criteria.¹⁸ [CORRECTION: The document previously described Washington’s program solely as “points-based.” Washington’s program under E2SSB 5080 combines a statutory six-month residency floor under § 69.50.331(b) with points-based DIA scoring criteria. Both elements were before the court.]

Writing for the panel, Judge Daniel A. Bress held that the dormant Commerce Clause does not apply to state cannabis licensing restrictions because marijuana remains illegal under federal law. The court declined to extend a judge-made constitutional doctrine to protect interstate commerce in a market that Congress has expressly prohibited, reasoning that the doctrine’s “fundamental objective” of preserving free private trade in the national marketplace “surely wanes when the national marketplace is” one that Congress has declared illegal.¹⁹ The panel expressly relied on Judge Gelpí’s 2022 dissent in the First Circuit’s Northeast Patients Group decision.²⁰ The Ninth Circuit noted the December 2025 executive order on rescheduling but found it irrelevant to the current constitutional analysis.²¹

The defendants have until March 17, 2026, to file a petition for en banc rehearing.²²

The Ninth Circuit’s decision is binding in the nine-state Ninth Circuit, encompassing the majority of mature adult-use cannabis markets.

E. The Fourth Circuit: Jensen v. Maryland Cannabis Administration (Sept. 2, 2025)

The Fourth Circuit addressed a dormant Commerce Clause challenge to Maryland’s social equity cannabis licensing program in Jensen v. Maryland Cannabis Administration, No. 24-1216, 151 F.4th 169 (4th Cir. Sept. 2, 2025), issued September 2, 2025.²³ The plaintiff, California resident Justyna Jensen, challenged a criterion requiring social equity applicants to have attended a qualifying four-year Maryland university (those where at least 40% of enrollees received Pell Grants) for at least two years.²⁴

Critically, the Fourth Circuit declined to decide whether the dormant Commerce Clause applies to cannabis at all: “We leave the question of whether the Dormant Commerce Clause applies to the marijuana market for another day. Our decision is strictly limited to whether the challenged criterion is discriminatory—which it is not.”²⁵ The panel held that the university-attendance criterion was facially neutral because it did not require Maryland residency—a non-Maryland resident who attended a qualifying Maryland university for two years would qualify.²⁶ The court thus disposed of the challenge on the merits without deepening the circuit split on the threshold jurisdictional question.²⁷

F. Implications of the Circuit Split

The circuit split between the First and Second Circuits (dormant Commerce Clause applies) and the Ninth Circuit (dormant Commerce Clause does not apply) creates immediate, practically significant asymmetry in the constitutional vulnerability of state cannabis licensing schemes. Social equity programs in New York, Connecticut, and Vermont that use state-specific conviction history as a licensing criterion face heightened constitutional exposure following Variscite. The same programs in California, Washington, and other Ninth Circuit states are shielded from dormant Commerce Clause attack under Peridot Tree as currently decided.

Legal observers have noted the high likelihood of eventual Supreme Court review, particularly given the Jensen certiorari petition already pending at the Court.²⁸ If cannabis is rescheduled to Schedule III—even without full federal legalization—the Ninth Circuit’s core rationale (that there is no legitimate interstate commerce for the doctrine to protect) may weaken considerably.²⁹

[GAP UPDATE — Hemp Definition’s Effect on Dormant Commerce Clause Analysis]: The November 2025 enactment of Section 781 of H.R. 5371, narrowing the federal definition of “hemp” to total THC at 0.3 percent effective November 12, 2026, introduces a new variable into the dormant Commerce Clause analysis. As the Ninth Circuit noted in Peridot Tree, the doctrine’s core premise is that Congress has prohibited an interstate cannabis market. The hemp definition amendments do not change marijuana’s Schedule I status, but they do establish that Congress, by enacting a revised statutory definition effective on a date certain, has affirmatively acknowledged the existence of a hemp-derived cannabinoid market that will be substantially reshaped by the new definition. States with cannabis licensing programs that intersect with the hemp market—including states that have licensed hemp-derived THC retailers through dispensary frameworks—may face arguments that the post-November 2026 federal regulatory framework for these products creates a federally acknowledged market to which the dormant Commerce Clause should apply, even if the doctrine does not reach marijuana proper. This argument remains speculative but warrants monitoring as the November 2026 effective date approaches.²⁹ᵃ

III. First Amendment Challenges

A. Commercial Speech and Cannabis Advertising

First Amendment commercial speech doctrine has generated a persistent but unsettled body of cannabis licensing litigation. The central question is whether advertising for state-legal cannabis businesses constitutes “commercial speech concerning lawful activity” entitled to protection under the Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) four-part test, or whether federal illegality strips the speech of constitutional protection at the first Central Hudson prong.³⁰

Courts have divided on this question. A New York Supreme Court ruling in April 2024 initially struck all New York cannabis regulations as unconstitutional before being narrowed the following day to hold only that specific third-party advertising regulations violated the First Amendment.³¹ The Northern District of Mississippi upheld Mississippi’s cannabis advertising ban in Cocroft v. Graham, No. 23-cv-00431 (N.D. Miss. Jan. 22, 2024), relying heavily on the Montana Supreme Court’s analysis in Montana Cannabis Industry Association v. State of Montana, 368 P.3d 1131 (Mont. 2016), which held that federally illegal activity cannot constitute “lawful activity” for Central Hudson purposes.³² That ruling was appealed to the Fifth Circuit, where it remains pending.³³

The doctrinal tension mirrors the dormant Commerce Clause split: whether federal illegality of the underlying conduct insulates state commercial regulation from constitutional scrutiny.

B. Labor Peace Agreement Requirements: Casala LLC v. Kotek (May 20, 2025)

A landmark First Amendment challenge struck down Oregon’s voter-approved cannabis licensing condition in Casala LLC v. Kotek, No. 3:25-cv-244-SI (D. Or. May 20, 2025).³⁴ Oregon’s Measure 119, approved by voters in November 2024 and effective December 2024, required all state-licensed cannabis businesses to submit a signed labor peace agreement (LPA) with their license application or renewal, mandating that the business “remain neutral with respect to labor representatives communicating with employees about their rights.”³⁵ Failure to submit or comply with an LPA could result in license denial or revocation.

U.S. District Judge Michael H. Simon permanently enjoined Measure 119’s enforcement on two independent grounds. First, the court held that Measure 119 was preempted by the National Labor Relations Act (NLRA) under both Garmon preemption and Machinists preemption.³⁶ Second, the court held that Measure 119 violated the First Amendment by restricting “all speech by employers that is not ‘neutral’ toward unionization”—including constitutionally protected employer speech.³⁷

The court acknowledged a directly contrary district court decision in California—Ctrl Alt Destroy v. Elliott, No. 3:25-cv-00387 (S.D. Cal. Mar. 12, 2025)—which upheld California’s similar LPA requirement under a different analysis.³⁸ The conflict between Oregon and California district courts, combined with the prevalence of LPA requirements in cannabis licensing statutes in California, New York, New Jersey, Connecticut, Rhode Island, Delaware, and Virginia, sets up additional appellate litigation on this issue.³⁹

IV. Equal Protection and Social Equity Licensing

A. Fourteenth Amendment Doctrine

State cannabis licensing programs that employ race-conscious or race-correlated criteria face potential Equal Protection challenges under the Fourteenth Amendment. The Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023), which applied strict scrutiny to race-conscious university admissions programs, has been invoked by challengers arguing that cannabis social equity programs that use race-correlated proxies—such as conviction history in disproportionately impacted areas—are subject to heightened constitutional scrutiny.⁴⁰

Most state cannabis equity programs have been designed to avoid explicit racial classifications, using facially neutral criteria (income thresholds, geographic designations of disproportionately impacted areas, prior conviction history) that correlate with but do not expressly mention race. The Second Circuit’s Variscite decision specifically noted that state-specific conviction requirements function as de facto residency proxies, but did not reach Fourteenth Amendment theories.⁴¹ Commentators have flagged the possibility that subsequent challenges may shift to Equal Protection theories.⁴²

B. Initiative Integrity and Legislative Override

Constitutional challenges to cannabis licensing programs have also arisen when state legislatures amend or repeal voter-approved cannabis initiatives. Ohio’s Issue 2, approved by 57% of voters in November 2023, legalized adult-use cannabis; in late 2025, the Ohio legislature amended the law to impose limits on home cultivation, THC potency, and public consumption, and also repealed the Cannabis Social Equity and Jobs Program established by the voter initiative.⁴³ Challenges to legislative override of voter initiatives implicate state constitutional provisions governing the initiative process and the legislature’s power to amend citizen-enacted laws.

In Nebraska, the medical cannabis initiatives approved in November 2024 faced signature validity challenges in Lancaster County District Court, with a former state senator arguing that the measures were constitutionally defective; the challenge was expected to reach the Nebraska Supreme Court.⁴⁴

V. Due Process Challenges to Licensing Procedures

A. Procedural Due Process

Cannabis license applicants have brought procedural due process challenges to licensing denials, particularly where licenses are issued through competitive lottery processes that may deprive applicants of a meaningful opportunity to contest denial. The majority of courts have held that a license applicant does not have a constitutionally protected property interest in a license that has not yet been granted, limiting the scope of procedural due process protections at the application stage.

Existing licensees occupy a different constitutional position. Courts have recognized that holders of issued cannabis licenses hold a property interest cognizable under the Due Process Clause, entitling them to notice and a meaningful opportunity to be heard before revocation or suspension.⁴⁵ The California LAO’s analysis of DCC’s administrative hearing costs—$4.1 million annually in Office of Administrative Hearings costs to process license appeals and discipline—reflects the practical scale of procedural due process obligations in a mature market.⁴⁶

B. Substantive Due Process

Substantive due process challenges to cannabis licensing restrictions typically fail under rational basis review, the applicable standard for economic regulation not involving a fundamental right. Courts have consistently held that cannabis use and commerce are not fundamental rights, and that licensing restrictions survive rational basis review as long as they bear a rational relationship to a legitimate government interest.⁴⁷

VI. Preemption

A. Federal CSA Preemption of State Cannabis Programs

The dominant preemption question in cannabis law is whether the CSA expressly or impliedly preempts state cannabis legalization statutes. Courts have consistently held that the CSA does not expressly preempt state cannabis laws, and that implied preemption is foreclosed by the “savings clause” of the CSA (21 U.S.C. § 903), which preserves state law unless there is a positive conflict with federal law.⁴⁸ Courts have found no positive conflict between state licensing of cannabis commerce and the federal prohibition.⁴⁹

[GAP UPDATE — Hemp Definition and Conflict Preemption]: The November 2025 enactment of the narrowed hemp definition (H.R. 5371, § 781, effective November 12, 2026) introduces a new preemption question distinct from the CSA marijuana preemption analysis. Because the hemp definition is embedded in the Agricultural Marketing Act rather than the CSA, its preemptive reach operates differently. DLA Piper has advised that states permitting sale of hemp-derived THC products above the new federal threshold could face conflict preemption arguments under the Supremacy Clause, because businesses in those states could not simultaneously comply with both state permission and federal prohibition of the same products.⁴⁹ᵃ This creates a new category of cannabis-adjacent preemption litigation that does not depend on the CSA savings clause and that may affect states—including Texas, Florida, and others—that have developed regulatory frameworks for hemp-derived cannabinoid products that exceed the new federal thresholds.

B. NLRA Preemption of Labor Peace Requirements

As Casala v. Kotek demonstrates, NLRA preemption presents a distinct and consequential preemption theory for cannabis licensing conditions. The Casala court held that cannabis businesses meeting the NLRA’s monetary jurisdictional thresholds are subject to the NLRA regardless of federal cannabis prohibition, and that labor peace agreement requirements conflict with NLRA-protected employer speech rights under both Garmon and Machinists preemption doctrines.⁵⁰ States with labor peace agreement conditions attached to cannabis licenses—California, New York, New Jersey, Connecticut, Rhode Island, Delaware, and Virginia—now face litigation risk under the Casala analysis.⁵¹

VII. Impact of Pending Rescheduling and Hemp Definition Amendments on Constitutional Analysis

The pending transfer of cannabis from Schedule I to Schedule III, combined with the November 2025 enactment of the hemp definition amendments, has potentially significant implications for the constitutional landscape in all three doctrinal areas surveyed above.

For the dormant Commerce Clause circuit split, the Ninth Circuit expressly acknowledged that rescheduling could change its analysis but held it irrelevant under existing law.⁵² If rescheduling is completed, the Ninth Circuit’s core premise—that there is no legitimate national market for the dormant Commerce Clause to protect—weakens substantially.⁵³ The hemp definition amendments accelerate this dynamic by creating a federally regulated market in compliant hemp-derived products, further eroding the Ninth Circuit’s premise that Congress has foreclosed all interstate cannabis commerce.

For First Amendment commercial speech, rescheduling would not automatically render cannabis advertising concerning “lawful activity” under Central Hudson, because cannabis would remain a federally controlled substance.⁵⁴ However, the removal of the Schedule I “no accepted medical use” rationale would weaken the federal-illegality argument used to deny First Amendment protection, at least for advertising of state-legal medical cannabis products.

For NLRA preemption, rescheduling to Schedule III would not directly alter the NLRA’s jurisdictional analysis, which is independent of CSA scheduling. The Casala court’s holding that cannabis businesses meeting NLRA monetary thresholds are within NLRA jurisdiction would remain valid under Schedule III status.⁵⁵

VIII. Conclusion and Legislative Recommendations

The constitutional vulnerability of cannabis licensing schemes is concentrated in four areas that legislatures and regulatory agencies should proactively address.

First, state legislatures in the First, Second, and other circuits outside the Ninth should redesign social equity licensing criteria to avoid facial geographic discrimination. Programs that use conviction history should include federal and out-of-state convictions, not just in-state convictions. Programs that use residence-in-a-disproportionately-impacted-area criteria should consider whether those criteria can be established without requiring in-state residence.

Second, states with labor peace agreement conditions in cannabis licensing statutes—California, New York, New Jersey, Connecticut, Rhode Island, Delaware, and Virginia—should evaluate their LPA provisions in light of Casala v. Kotek and begin considering whether their statutes are distinguishable from Oregon’s Measure 119 or whether legislative revision is warranted to avoid injunctions.

Third, states should monitor the Peridot Tree rehearing petition deadline of March 17, 2026, the pending Jensencertiorari petition in No. 25-766, and any subsequent Supreme Court action. Supreme Court resolution of the dormant Commerce Clause circuit split would require rapid revision of licensing programs across whichever circuit’s approach is not affirmed.

Fourth, as federal rescheduling moves forward and as the November 2026 hemp definition effective date approaches, state cannabis counselors should advise their clients that the constitutional landscape is likely to shift on multiple fronts simultaneously: dormant Commerce Clause exposure expanding in Ninth Circuit states; First Amendment protection for cannabis advertising becoming more defensible; and new conflict preemption challenges emerging for states whose hemp frameworks exceed the new federal thresholds.

Endnotes

1. U.S. Const. art. I, § 8, cl. 3; Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
2. City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978).
3. Ne. Patients Grp. v. United Cannabis Patients & Caregivers of Me., 45 F.4th 542 (1st Cir. 2022), https://law.justia.com/cases/federal/appellate-courts/ca1/21-1719/21-1719-2022-08-17.html.
4. Id. at 544.
5. Shipman & Goodwin LLP, U.S. Court of Appeals for the First Circuit Issues Potentially Landmark Decision for Cannabis Industry (Aug. 17, 2022), https://www.shipmangoodwin.com/insights/us-court-of-appeals-for-the-first-circuit-issues-potentially-landmark-decision-for-cannabis-industry.html.
6. Greenspoon Marder LLP, Federal Appellate Court Rejects Maine’s Cannabis-Related Residency Requirements(2022), https://www.gmlaw.com/news/federal-appellate-court-rejects-maines-cannabis-law-related-to-residency-requirements/.
7. Ne. Patients Grp., 45 F.4th at 554–55.
8. Id. (Gelpí, J., dissenting); Bloomberg Law, U.S. Law Week Jan. 2026 Circuit Split Review: Cannabis Licensing(Jan. 2, 2026), https://news.bloomberglaw.com/litigation/u-s-law-week-jan-2026-circuit-split-review-cannabis-licensing.
9. Variscite NY Four, LLC v. N.Y. State Cannabis Control Bd., 152 F.4th 47 (2d Cir. Aug. 12, 2025), https://law.justia.com/cases/federal/appellate-courts/ca2/24-384/24-384-2025-08-12.html.[F4thcitationconfirmedbySupremeCourtcertioraripetitionin[F4thcitationconfirmedbySupremeCourtcertioraripetitioninJensen v. Md. Cannabis Admin., No. 25-766 (U.S. Dec. 23, 2025), which cites Variscite NY Four, LLC v. N.Y. State Cannabis Control Bd., 152 F.4th 47, 64 (2d Cir. 2025).]
10. MB Law Firm, Second Circuit Ruling in Variscite v. NYCCB (Aug. 20, 2025), https://mblawfirm.com/blog/second-circuit-ny-cannabis-ruling/; Libation Law Blog (Aug. 15, 2025), https://libationlawblog.com/2025/08/15/second-circuit-variscite-ny-cannabis-licensing-dormant-commerce-clause/.
11. Id.
12. Variscite NY Four, 152 F.4th 47 (vacating denial of preliminary injunction and remanding for further proceedings).
13. Cannabis Business Times, Another Federal Court Rules Dormant Commerce Clause Applies to Cannabis Licenses, https://www.cannabisbusinesstimes.com/us-states/new-york/news/15752960/another-federal-court-rules-dormant-commerce-clause-applies-to-cannabis-licenses.
14. Variscite NY Four, 152 F.4th at 64 (holding Variscite had standing to challenge December Pool Extra Priority regime and November Pool processing order, but not CAURD program to which it had never applied).
15. Id. (Livingston, C.J., dissenting in part); Shay Gilmore Law (Aug. 12, 2025), https://shaygilmorelaw.com/second-circuit-panel-finds-dormant-commerce-clause-applies-cannabis/.
16. CaseMine, Extending the Dormant Commerce Clause to Federally-Prohibited Markets (Aug. 15, 2025), https://www.casemine.com/commentary/us/extending-the-dormant-commerce-clause-to-federally-prohibited-markets.

16a. Petition for Writ of Certiorari, Jensen v. Md. Cannabis Admin., No. 25-766 (U.S. Dec. 23, 2025), https://www.supremecourt.gov/DocketPDF/25/25-766/390226/20251223105750873_251221a%20Petition%20for%20efiling.pdf (citing circuit split among First, Second, and Ninth Circuits and requesting resolution of whether dormant Commerce Clause applies to cannabis licensing restrictions).

1. Peridot Tree WA, Inc. v. Wash. State Liquor & Cannabis Control Bd., No. 24-3481 (9th Cir. Jan. 2, 2026), https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/02/24-3481.pdf.
2. Regulatory Oversight, Circuit Split Emerges on State Marijuana Residency Rules (Feb. 10, 2026), https://www.regulatoryoversight.com/2026/02/circuit-split-emerges-on-state-marijuana-residency-rules-with-ninth-circuit-finding-dormant-commerce-clause-inapplicable/ (describing Washington’s statutory six-month residency requirement under Wash. Rev. Code § 69.50.331(b) and points-based social equity criteria under E2SSB 5080; Sacramento CORE Program’s reserved permits).
3. Peridot Tree WA, No. 24-3481, slip op. at *22–23 (Bress, J.); Bloomberg Law, supra note 8.
4. Id. (citing Ne. Patients Grp., 45 F.4th at 559 (Gelpí, J., dissenting)).
5. Harris Sliwoski LLP, Dormant Commerce Clause Meets Cannabis (Jan. 13, 2026), https://harris-sliwoski.com/cannalawblog/dormant-commerce-clause-meets-cannabis-residency-requirements-federal-illegality-and-what-comes-next/.
6. Regulatory Oversight, supra note 18 (“The appellants have until March 17, 2026, to file a petition for en banc rehearing of the case before the full panel of Ninth Circuit judges.”).
7. Jensen v. Md. Cannabis Admin., No. 24-1216, 151 F.4th 169 (4th Cir. Sept. 2, 2025), https://law.justia.com/cases/federal/appellate-courts/ca4/24-1216/24-1216-2025-09-02.html.[ReportercitationconfirmedfromSupremeCourtcertioraripetitionin[ReportercitationconfirmedfromSupremeCourtcertioraripetitioninJensen v. Md. Cannabis Admin., No. 25-766 (U.S. Dec. 23, 2025).]
8. Courthouse News Service, Fourth Circuit Clears Maryland Social Equity Mandate for Retail Weed Market (Sept. 2, 2025), https://www.courthousenews.com/fourth-circuit-clears-maryland-social-equity-mandate-for-retail-weed-market/.
9. Jensen, 151 F.4th at 177 n.3; CRB Monitor, 4th Circuit Upholds Maryland’s Social Equity Program (Sept. 12, 2025), https://news.crbmonitor.com/2025/09/4th-circuit-upholds-marylands-social-equity-program/.
10. Jensen, 151 F.4th at 176–77.
11. Virginia Lawyers Weekly (Sept. 15, 2025), https://valawyersweekly.com/2025/09/15/constitutional-maryland-cannabis-licensing-statute-doesnt-violate-dormant-commerce-clause/.
12. Bloomberg Law, supra note 8; see also Petition for Writ of Certiorari, Jensen, No. 25-766, supra note 16a.
13. Harris Sliwoski LLP, supra note 21.

29a. DLA Piper, New Federal Restrictions on Hemp and Hemp-Derived Products (Nov. 2025), https://www.dlapiper.com/en-us/insights/publications/2025/11/new-federal-restrictions-on-hemp-and-hemp-derived-products (“if a state law permits the sale of hemp-derived THC products above the new federal threshold, businesses cannot comply with both laws simultaneously. This could implicate conflict preemption”).

1. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980).
2. ArentFox Schiff, Top 10 Legal Issues in the Cannabis Industry in 2024 (May 22, 2024), https://www.afslaw.com/perspectives/alerts/top-10-legal-issues-the-cannabis-industry-2024.
3. Cocroft v. Graham, No. 23-cv-00431, 10 (N.D. Miss. Jan. 22, 2024); Network for Public Health Law, Cannabis Advertising and the First Amendment (Sept. 2024), https://www.networkforphl.org/wp-content/uploads/2024/09/Cannabis-Advertising-and-the-First-Amendment.pdf.
4. Duane Morris LLP, Cases We’re Watching: Constitutionality of State Restrictions on Cannabis Advertising (June 26, 2024), https://blogs.duanemorris.com/cannabis/2024/06/26/cases-were-watching-constitutionality-of-state-restrictions-on-cannabis-advertising/.
5. Casala LLC v. Kotek, No. 3:25-cv-244-SI (D. Or. May 20, 2025); Ballotpedia, Federal Judge Declares Oregon Cannabis Union Law Unconstitutional (May 27, 2025), https://news.ballotpedia.org/2025/05/27/federal-judge-declares-oregon-cannabis-union-law-unconstitutional-overturning-the-2024-ballot-measure/.
6. Miller Nash LLP, Oregon Cannabis Employers No Longer Need to Comply with Measure 119 (May 30, 2025), https://www.millernash.com/industry-news/oregon-cannabis-employers-no-longer-need-to-comply-with-measure-119-and-obtain-labor-peace-agreements.
7. Shipman & Goodwin LLP, Oregon Labor Peace Agreement Requirement Struck Down as Preempted by NLRA(May 2025), https://www.shipmangoodwin.com/insights/oregon-labor-peace-agreement-requirement-struck-down-as-preempted-by-nlra.
8. Proskauer Rose LLP, Oregon’s Cannabis Labor Peace Law Struck Down (2025), https://www.proskauer.com/blog/oregons-cannabis-labor-peace-law-struck-down; Ballotpedia, supra note 34.
9. Shipman & Goodwin LLP, supra note 36 (noting contrary decision in Ctrl Alt Destroy v. Elliott, 2025 WL 790963 (S.D. Cal. Mar. 12, 2025)).
10. National Law Review, Oregon’s Cannabis Labor Peace Law Violated First Amendment Rights (2025), https://natlawreview.com/article/oregons-cannabis-labor-peace-law-struck-down.
11. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023); Libation Law Blog, supra note 10.
12. Variscite NY Four, 152 F.4th 47 (majority opinion focused on dormant Commerce Clause, not Equal Protection).
13. CaseMine, supra note 16.
14. McCarter & English LLP, Cannabis Crossroads (May 23, 2025), https://www.mccarter.com/insights/cannabis-crossroads-addressing-the-illegal-cannabis-market-while-preserving-social-equity-progress/; MPP Blog (2025), https://blog.mpp.org/blog/2026-cannabis-ballot-measures-will-progress-be-pushed-forward-or-rolled-back/.
15. Goodwin LLP, Cannabis on the Ballot—2024 Brings Disappointing Results (Nov. 2024), https://www.goodwinlaw.com/en/insights/publications/2024/11/alerts-practices-can-cannabis-on-the-ballot.
16. See ABA, Cannabis Law: An Update on Recent Developments Related to the Cannabis Industry, 2025 (Aug. 2025), https://www.americanbar.org/groups/business_law/resources/business-law-today/2025-august/recent-developments-cannabis-law/.
17. California LAO, The 2024-25 Budget: DCC Legal and Administrative Hearing Costs, https://lao.ca.gov/Publications/Report/4869.
18. See generally ABA, supra note 45; Ne. Patients Grp., 45 F.4th at 547.
19. 21 U.S.C. § 903; Gonzales v. Oregon, 546 U.S. 243, 274 (2006); Congressional Research Service, Legal Consequences of Rescheduling Marijuana, LSB11105 (2025), https://www.congress.gov/crs-product/LSB11105.
20. See Harris Sliwoski LLP, supra note 21.

49a. DLA Piper, supra note 29a; Arnold & Porter, Continuing Resolution Introduces Major Changes to Federal Regulation of Hemp-Derived Products (2025), https://www.arnoldporter.com/en/perspectives/advisories/2025/12/major-changes-to-federal-regulation-of-hemp-derived-products (describing conflict preemption implications for states permitting sales above the new federal thresholds).

1. Proskauer Rose LLP, supra note 37; Shipman & Goodwin LLP, supra note 36.
2. National Law Review, supra note 39; Casala LLC v. Kotek, No. 3:25-cv-244-SI (D. Or. May 20, 2025) (binding in Oregon only).
3. Peridot Tree WA, No. 24-3481, slip op. (Ninth Circuit found rescheduling executive order “irrelevant for now”); Harris Sliwoski LLP, supra note 21.
4. Harris Sliwoski LLP, supra note 21.
5. Congressional Research Service, Legal Consequences of Rescheduling Marijuana, supra note 48.
6. Shipman & Goodwin LLP, supra note 36 (noting NLRA jurisdiction analysis is independent of CSA scheduling).