A New York appeals court has vacated a lower court order that had restricted the Office of Cannabis Management’s ability to conduct enforcement and inspection actions against cannabis and hemp retailers.
The Appellate Division, Third Department issued the ruling June 11 in Super Smoke N Save LLC et al. v. New York State Cannabis Control Board, overturning an Albany County Supreme Court order that had restricted key parts of OCM’s administrative enforcement work.
According to OCM, the lower court had enjoined much of the agency’s enforcement activity despite evidence presented in the case that inspectors observed alleged violations at the business, including hemp edibles packaged in bright yellow, red and blue colors with the word “muffins” on the front. OCM said the packaging raised concerns under regulations prohibiting cannabis product packaging that imitates candy labels or uses cartoons or other imagery popular with children.
In vacating the injunction, the appellate court found that public health and safety concerns outweighed the alleged harm claimed by the petitioners.
“On this record, we find that the public health and safety risks caused by the unlicensed sale of cannabis products outweigh any contingent injury claimed by petitioners,” the court held, according to OCM.
The court also rejected arguments that the administrative search process was facially unconstitutional, finding that the state’s cannabis law and related regulations sufficiently define how inspections are conducted. The court further noted that while the regulatory framework limits OCM’s actions, it authorizes the agency to impose administrative penalties for non-cooperation and identifies which products may be seized.
“The Appellate Division clearly recognizes the critical public health and safety issues driving this enforcement effort,” said OCM Executive Director John Kagia. “The preliminary injunction has been lifted and now OCM’s enforcement and inspection activities will no longer be limited.”
Kagia said the agency respects the rights of business owners and maintains an administrative review process, but said it must continue carrying out its statutory responsibilities.
“While the OCM fully respects the rights of business owners and maintains a structured process for administrative review,” said Kagia, “we must decisively discharge our statutory duties to mitigate any immediate risks to public health and safety.”
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