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On Tuesday, the Fourth Circuit Court of Appeals affirmed a lower Maryland Court decision that sought to undo Maryland’s 2023 adult-use cannabis social equity licensing application phase. The lawsuit was filed by an attorney, Jeffrey Jensen, who is systematically challenging cannabis application processes under a dormant commerce clause argument. Here, one of the ways to qualify as a social equity applicant was if the applicant attended an educational institution in Maryland where more than 40% of the enrollees were awarded Pell Grants. The plaintiff, Jensen’s wife, did not attend one of the qualifying Maryland-based institutions and so was unable to qualify through the institution-based criteria. After failing to qualify as a social equity applicant based on her attendance at a Maryland institution, the Plaintiff filed for a temporary restraining order and preliminary injunction. Both were denied by the district court. On appeal, the Fourth Circuit affirmed on the narrow basis that there was no discrimination because the out-of-state residents, like Jensen, could have attended one of the qualifying Maryland institutions and thereby satisfy the conditions for social equity. Interestingly, the Fourth Circuit expressly left open “the question of whether the dormant commerce clause applies to the marijuana market for another day.”
