Charm City Hemp, LLC v. Moore

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CHARM CITY HEMP, LLC, et al.,

Plaintiffs,

v. Civil No.: 1:25-cv-01744-JRR

GOVERNOR WES MOORE, et al.,

Defendants.

MEMORANDUM OPINION

This matter comes before the court on Plaintiffs’ Motion for Temporary Restraining Order

and Preliminary Injunction. (ECF No. 6; the “Motion.”) No hearing is necessary. Local Rule

105.6 (D. Md. 2025). For the reasons set forth below, by separate order, the Motion will be denied

and the hearing scheduled for August 7, 2025, will be canceled.

I. BACKGROUND

Plaintiffs—a collection of hemp farmers, hemp retailers, an advocacy organization formed

on behalf of hemp farmers, and a consumer of hemp products—bring the instant action to enjoin

Defendants—the State of Maryland, the Governor of Maryland, the Maryland Cannabis

Administration and its executive director, and the Maryland Alcohol, Tobacco, and Cannabis

Commission and its executive director (collectively, the “State Defendants”) and the

Commissioner of the Baltimore City Police Department—from enforcing various provisions of

Maryland law and regulations relating to hemp and cannabis products.

A. Parties

Plaintiff Maryland Hemp Coalition, Inc. (“MHC”) is a non-profit member organization of

hemp farmers. MHC’s mission is to “forward the cause of farmers of hemp in the State of

Maryland.” (ECF No. 1 ¶ 4.)

Plaintiff Charm City Hemp, LLC, d/b/a Charm City Hemp, is a Maryland registered

Limited Liability Company and retailer of hemp products sold in Baltimore, Maryland.1 Id. ¶ 5.

Charm City Hemp does not have a license, as required by Maryland law, to engage in retail sales

of cannabis products. Id.

Plaintiff Endo Productions Company is a Pennsylvania Limited Liability Company that

produces and distributes Tetrahydrocannabinol (“THC”)-infused beverages. Endo Productions

Company markets and distributes these beverages in Maryland, but it does not have a Maryland

cannabis license. Id. ¶ 6.

Plaintiff J. Wyand, Inc., d/b/a Simple Pleasures, is a West Virginia corporation with a

Maryland registered trade name and a retail store selling hemp-derived products in Hagerstown,

Maryland. Simple Pleasures does not have a Maryland cannabis license. Id. ¶ 7.

Plaintiff Ira Cooke is an individual customer of Simple Pleasures. Id. ¶ 13.

Plaintiff South Mountain Microfarm, LLC, is a Maryland agricultural business that grows

hemp plants, processes hemp plants, and distributes hemp-derived products to retailers in

Maryland. South Mountain Microfarm also retails its products directly to consumers. Its products

include hemp-derived beverages. It does not have a State of Maryland cannabis license. Id. ¶ 8.

1 Defendants allege, and Plaintiffs do not dispute, that as of July 1, 2025, Plaintiff Charm City Hemp, LLC, was not

in good standing as a Maryland LLC. The court conducted a search for Charm City, LLC, in the Maryland Business

Entity Search of which it is entitled to take judicial notice as a government public website

(https://egov.maryland.gov/businessexpress/entitysearch, last accessed July 30, 2025). The search results indicate that

Plaintiff is still not in good standing. A Maryland LLC not in good standing is ineligible to bring suit in federal court.

United Corrosion Control, LLC v. Carboline Co., No. 22-1423, 2023 WL 8712048, at *2–3 (4th Cir. Dec. 18, 2023).

Plaintiff Peace of Sunshine, LLC, d/b/a Peace of Sunshine, is a Maryland LLC that retails

hemp products in Catonsville, Maryland, without a Maryland State license to do so. (ECF No. 1

¶ 9.)

Plaintiff Straf, LLC, d/b/a Peace of Crofton, is a Maryland LLC that retails hemp products

in Crofton, Maryland, without a Maryland license to do so. Id. ¶ 10.

Plaintiff Cannon Apothecary, LLC, d/b/a/ Cannon Ball Dispensary, is a Maryland LLC

that retails hemp products in Lusby, Maryland, without a Maryland license to do so. Id. ¶ 11.

Plaintiff The Unlimited Experience Holding Company, LLC, d/b/a The Southern Maryland

Experience, is a Maryland LLC that retails hemp products in Hollywood, Maryland, without a

Maryland license to do so. Id. ¶ 12.

Defendants are Wes Moore, Governor of Maryland; the Maryland Cannabis

Administration; the Executive Director of the Maryland Cannabis Administration; the Maryland

Alcohol, Tobacco, and Cannabis Commission; the Executive Director of the Maryland Alcohol,

Tobacco, and Cannabis Commission; the Commissioner of the Baltimore City Police Department;

and “various other persons who either have regulatory authority under the State of Maryland’s

cannabis licensing laws, or who have taken unlawful action in furthering the enforcement of the

State of Maryland’s cannabis licensing regime.” (ECF No. 1 ¶ 14.) All individual Defendants are

sued in their official capacities only. Id.

B. Statutory and Factual Background

Pursuant to the Controlled Substances Act (“CSA”), the use, distribution, manufacture, and

possession of cannabis, also known as marijuana, is federally illegal. 21 U.S.C. § 801 et seq.

Cannabis and hemp are both derived from the Cannabis sativa L. plant. Importantly, since 2018,

the distribution, manufacture, and possession of hemp, defined as a Cannabis Sativa plant with a

delta-9 THC concentration of not more than 0.3 percent, is not prohibited by federal law.2 7 U.S.C.

§ 1639o. The Agricultural Improvement Act (known as the “Farm Act”) distinguishes hemp from

cannabis and authorizes states to implement their own agricultural programs related to the

production of hemp products. Id. § 1639p(a)(3).

1. The Maryland Cannabis Reform Act (2023)

In 2023, the Maryland legislature passed the Cannabis Reform Act (“CRA”) that

comprehensively overhauled cannabis and hemp regulation in the State. Two developments

precipitated the passage of the CRA: Maryland citizens’ 2022 vote to amend the Maryland

Constitution to legalize recreational marijuana use, and the proliferation of unregulated,

intoxicating hemp products following the Farm Act. (ECF No. 20 at pp. 10–11 (quoting Maryland

House Economic Matters Committee C.T. Wilson noting the marketplace of hemp products

developed “merely to get someone high, which was never the intent of this legislature”).) Pertinent

to this action, the CRA amended the Maryland Code to implement new standards for defining

hemp, provide for recreational cannabis retail, growing, and processing licenses, and create the

Maryland Cannabis Administration (“MCA”) to regulate the cannabis industry in the state.3

As it relates to the hemp products Plaintiffs manufacture and retail, the CRA provides:

(b)(1) A person may not sell or distribute a product intended for

human consumption or inhalation that contains more than 0.5

milligrams of tetrahydrocannabinol per serving or 2.5 milligrams of

tetrahydrocannabinol per package unless the person is licensed

under § 36-401 of this title

. . .

(d)(1) Notwithstanding subsection (b) of this section and subject to

paragraph (2) of this subsection, it is not a violation of this section

2 The parties dispute whether testing to determine the THC concentration of a Cannabis plant must occur at a specified

time. For the reasons set forth below, this dispute is immaterial to Plaintiff’s likelihood of success on the merits of

their claims or to any other facet of the court’s analysis. Accordingly, the court does not reach the parties’ arguments

regarding whether hemp must be tested at 30 days or any other time.

3 Previously, an entity called the Maryland Medical Cannabis Commission oversaw licensing and regulation of

medical marijuana distributors. Maryland legalized medical marijuana in 2014.

for a person to sell or distribute a hemp-derived tincture intended for

human consumption that contains:

(i) a ratio of cannabidiol to tetrahydrocannabinol of at least 15 to 1;

and

(ii) 2.5 milligrams or less of tetrahydrocannabinol per serving and

100 milligrams or less of tetrahydrocannabinol per package.

(2) To sell or distribute a hemp-derived tincture under this

subsection, a person must provide, as required by the

Administration, tincture samples for the purpose of testing to

determine chemical potency and composition levels and to detect

and quantify contaminants.

(e) A person who violates subsection (b) of this section:

(1) may be charged by a citation; and

(2) is guilty of a misdemeanor and on conviction is subject to a fine

not exceeding $5,000.

MD. CODE ANN., ALC. BEV. § 36-1102(b)–(e). Plaintiffs allege that their products, “while being

derived from hemp and not marijuana, and therefore lawful under Federal Law pursuant to the

2018 Farm Bill, cannot meet the new standard for maximum milligrams of THC imposed by” the

CRA. (ECF No. 1 ¶ 30.) Accordingly, “the Plaintiff retailers are required under Maryland’s

Cannabis Reform Act to obtain a recreational cannabis license under the Act.” Id. ¶ 31.

Pursuant to the CRA, recreational cannabis licensing proceeded in two rounds: the first to

begin before January 1, 2024, and the second to begin after May 1, 2024. MD. CODE ANN., ALC.

BEV. § 36-404(a)(1), (2).4

(d)(1) For the first round, subject to paragraphs (2) and (3) of this

subsection, the Administration shall enter each social equity

applicant that meets the minimum qualifications established by the

Administration into a lottery and issue to social equity applicants

not more than:

(i) for standard licenses:

4 The CRA also provided that on or before July 1, 2023, medical growers, processors, and dispensaries could convert

their licenses to licenses to operate medical and recreational cannabis businesses. MD. CODE ANN., ALC. BEV. § 36-

401(b)(1). No Plaintiff was previously licensed as a medical marijuana grower, processor, or dispensary.

1. 20 grower licenses;

2. 40 processor licenses; and

3. 80 dispensary licenses;

(ii) for micro licenses:

1. 30 grower licenses;

2. 30 processor licenses; and

3. 10 dispensary licenses; and

(iii) 10 incubator space licenses.

(2) The Administration shall determine whether an application

meets the minimum qualifications for the lottery on a pass-fail basis,

as determined by the Administration, after evaluating:

(i) a detailed operational plan for the safe, secure, and effective

cultivation, manufacture, or dispensing of cannabis;

(ii) a business plan demonstrating a likelihood of success and

sufficient business ability and experience on the part of the

applicant, and providing for appropriate employee working

conditions; and

(iii) a detailed diversity plan.

(3)(i) If an applicant seeking social equity status is from out of state,

the applicant must submit with the application evidence that the

applicant meets the criteria for a social equity applicant established

under this title before the Administration may consider the

application.

(ii) First round application submissions for all license types are

limited to social equity applicants.

Id. § 36-404(d)(1)–(3).

“Social equity applicants” are defined as:

[A]n applicant for a cannabis license or cannabis registration that:

(1) has at least 65% ownership and control held by one or more

individuals who:

(i) have lived in a disproportionately impacted area for at least 5 of

the 10 years immediately preceding the submission of the

application;

(ii) attended a public school in a disproportionately impacted area

for at least 5 years; or

(iii) for at least 2 years, attended a 4-year institution of higher

education in the State where at least 40% of the individuals who

attend the institution of higher education are eligible for a Pell Grant;

or

(2) meets any other criteria established by the Administration.

Id. § 36-101(ff). “Disproportionately affected area” is defined as “a geographic area identified by

the office of social equity that has had above 150% of the state’s 10-year average for cannabis

possession charges.” Id. § 36-101(r).

Following passage of the CRA, some, but not all, Plaintiffs brought an action in the Circuit

Court for Washington County, Maryland, on July 24, 2023 (Case No C-21-CV-23-348). (ECF

No. 1 ¶ 57.) The State court action plaintiffs alleged violations of state law only. Id. ¶ 58. In that

case, the Circuit Court entered a preliminary injunction enjoining the State from “enforcing

Maryland Code Ann. Alc. Bev. § 36-1102 against any person who was already lawfully in the

business of selling hemp derived products prior to July 1, 2023.” (ECF No. 6-3.) This injunction

did not, however, enjoin the State from proceeding with the licensing scheme described in the

CRA. An appeal of the preliminary injunction order is currently pending before the Appellate

Court of Maryland. (ECF No. 20 at p. 17.)

As part of the first round of licensing, the MCA conducted two lotteries. (ECF No. 20 at

p. 18.) No Plaintiff applied for the first round of licensing, and therefore none received a license

during same. (ECF No. 1 ¶ 69.) The second round of licensing will not occur until the State

performs and analyzes a disparity study to determine whether remedial measures are required.

MD. CODE ANN., ALC. BEV. § 36-404(e)–(g). To the court’s knowledge, at the time of this writing,

this study is ongoing; thus, the terms for accepting license applications for the second round have

not yet been set, and the application process has not begun. (ECF No. 20 at p. 18; ECF No. 1 ¶

50.)

2. Senate Bill 215 (2025)

During its 2025 session, the Maryland General Assembly passed Senate Bill 215. 2025

Md. Law ch. 120. The Bill became law on July 1, 2025, and provides that licenses for on-site

cannabis consumption sites shall be awarded through the same process as second round grower,

processor, and dispensary licenses are awarded. 2025 Md. Law ch. 120 § 36-404(g)(iv). Bill 215

does not alter the CRA’s provision that the second round of licensing will proceed only after the

MCA completes a study as to whether further social equity programs are needed. MD. CODE ANN.,

ALC. BEV. § 36-404(e)–(g). Accordingly, like with the second round licenses, the application

criteria for the on-site consumption site licenses has yet to be determined. In preparation for the

licensure of on-site consumption sites, the Bill defines “cannabinoid beverages,” the State

Defendants submit, for the limited purpose of “clarify[ing] what an on-site consumption site may

serve when it becomes operational.” Id. § 36-101(C-1); ECF No. 20 at p. 21. To be clear, Senate

Bill 215 does not alter the licensing procedure for the second round of licensing set forth in the

CRA. As of this writing, the second round of licensing has yet to commence, and the MCA has

not yet determined the criteria for applying for same.

3. Edible Products and Beverages, Shelf Space Requirement, and Marijuana

Enforcement Tracking Regulation and Compliance

In the Complaint, in addition to their challenge of the CRA’s licensing requirements,

Plaintiffs challenge the below-described aspects of the CRA and cannabis regulation in Maryland.

First, Plaintiffs allege that Maryland recently changed the regulations regarding edible

cannabis products and restricted their sale to licensed dispensaries. (ECF No. 1 ¶ 71, 73.) Per

MCA’s regulations, to process, sell, or distribute edible cannabis products in Maryland, a licensed

processor must obtain a permit from the MCA. COMAR 14.17.13.05A(1). MCA additionally

regulates certain qualities of edible cannabis products, including shape and ingredients. COMAR

14.17.13.05(C)(1)–(3); 14.17.13.05E. Maryland also permits the sale of liquid edibles (i.e. THC

beverages) subject to certain MCA regulations. COMAR 14.17.13.05D.

The State Defendants maintain that neither Maryland law nor MCA regulation restricts the

ability to retail edible cannabis products to only dispensaries licensed under the CRA. (ECF No.

20 at pp. 19–20.) Senate Bill 215 does not alter the law or regulations related to the retail of edible

cannabis products; to the extent it references cannabinoid beverages, the State Defendants insist

the Act’s new definition of same is for the purpose of “clarify[ing] the authority of an on-site

consumption site to process single serving products and repackage products for purposes of

creating single serving products.” (ECF No. 20 at p. 21.)

Second, Plaintiffs challenge the CRA and MCA regulations requiring dispensaries licensed

before December 31, 2022, to ensure that 25% of cannabis products available for retail come from

a combination of social equity licensees and licensees that share no common ownership interest or

control with the dispensary license holder. (ECF No. 1 ¶ 106.) See MD. CODE ANN., ALC. BEV. §

36-401(a)(3). This requirement explicitly concerns cannabis products, and does not mention hemp

products or impose similar requirements on the sale of hemp-derived products.

Third, Plaintiffs assert that the State’s use of the Marijuana Enforcement Tracking

Regulation and Compliance (“METRC”) system, and Plaintiffs’ inability to use the system as non-

licensees, “lock[s] them out from doing legitimate business with state licensed dispensaries, [and]

is a violation of the equal protection requirements of the Fourteenth Amendment to the United

States Constitution.” (ECF No. 1 at p. 34.) METRC is a third party system contracted by the

MCA to provide track and trace technology for cannabis plants. (ECF No. 20 at p. 20.) METRC

is a service available to licensed cannabis producers and distributors. If a Maryland cannabis

licensee purchased hemp from an un-licensed source, like Plaintiff farmers, the licensee would

enter the product into METRC’s system. See COMAR 14.17.11.03(B)(2) (providing that a

processor may acquire hemp from a person licensed to produce hemp by the Maryland Department

of Agriculture or the Secretary of the U.S. Department of Agriculture, or an agency of another

state pursuant to a hemp production plan that has been approved by the Secretary of the U.S.

Department of Agriculture); ECF No. 20-8, State Court Testimony of William Tilburg Maryland

Hemp Coalition, v. Governor Wes Moore (Case No. C-21-CV-23-348) at pp. 7–8.

4. Spring 2025 Enforcement Actions

Plaintiffs allege that in the weeks leading up to the filing of this action, local law

enforcement agencies in Baltimore City and Harford County “acting at the request and with the

cooperation of the Maryland Alcohol, Tobacco, and Cannabis Commission” conducted searches,

seizures, and brought enforcement actions against retailers of hemp product. (ECF No. 6 ¶ 42.)

Agents seized product from “several hemp retailers in Baltimore City” and, in at least one instance,

brought criminal charges for the sale of cannabis based on lab analysis of the seized product. Id.

¶ 43. Plaintiffs do not allege they were subject to any search, seizure, or criminal action. Instead,

they urge that “Plaintiffs who engage in the sale of hemp flower have a reasonable apprehension

that they may be targeted for similar unlawful searches, seizures and enforcement actions, and seek

an injunction and declaratory judgment that such seizures are unlawful.” Id. ¶ 46.

C. Procedural Posture

Plaintiffs filed this action on June 2, 2025 (ECF No. 1). The Complaint sets forth the

following counts:

Count I: Declaratory Judgment And Injunctive Relief - Violation Of

Rights To Equal Protection Of The Law Under Fourteenth

Amendment (Discrimination In Ability To Acquire A License) And

Under 42 U.S.C. § 1983;

Count II: Declaratory Judgment And Injunctive Relief - Violation

Of Right To Due Process Of Law Under Fourteenth Amendment

And Violation Of Civil Rights Pursuant To 42 U.S.C. § 1983;

Count III: Declaratory Judgment And Injunctive Relief - Violation

Of Dormant Commerce Clause And Violation Of Civil Rights

Under 42 U.S.C. § 1983; and

Count IV: Taking Without Just Compensation Under Fourteenth

Amendment Of The United States Constitution And Violation Of

Civil Rights Pursuant To 42 U.S.C. § 1983.

(ECF No. 1 at pp. 32–39.)

With each count, Plaintiffs include numerous, distinct requests for declaratory judgment.

These sub-requests at Counts I and II are nearly identical:

The Plaintiffs pray that this Court enter a declaratory judgment that:

A. The State of Maryland social equity restrictions upon licensure

were and are in violation of the equal protection requirements [and

due process requirements] of the Fourteenth Amendment of the

United States Constitution. The Plaintiffs further pray that the Court

order appropriate injunctive relief.

B. The State of Maryland numerical restrictions upon licensure were

and are in violation of the equal protection requirements [and due

process requirements] of the Fourteenth Amendment of the United

States Constitution. The Plaintiffs further pray that the Court order

appropriate injunctive relief.

C. The State of Maryland “lottery system” for licensure is and was

in violation of the equal protection requirements [and due process

requirements] of the Fourteenth Amendment of the United States

Constitution. The Plaintiffs further pray that the Court order

appropriate injunctive relief.

D. The selective enforcement of erroneous testing standards,

contrary to State and Federal Regulations as to hemp flower

products, against the hemp retailers and not against state licensed

dispensaries, is in violation of the equal protection requirements

[and due process requirements] of the Fourteenth Amendment of the

United States Constitution. The Plaintiffs further pray that

appropriate injunctive relief be granted.

E. That the State policies denying access to the METRC system to

the Plaintiffs, thereby locking them out from doing legitimate

business with state licensed dispensaries, is a violation of the equal

protection requirements [and due process requirements] of the

Fourteenth Amendment to the United States Constitution. The

Plaintiffs further pray that appropriate injunctive relief be granted.

F. The requirement of a “detailed diversity statement” and business

plan as part of the licensing review process, without any oversight

to prevent arbitrary or capricious determinations of eligibility, are in

violation of the equal protection requirements of the Fourteenth

Amendment to the United States Constitution. The Plaintiffs further

pray that appropriate injunctive relief be granted.

G. That the State policies allowing the sale of Federally lawful THC

infused beverages, chocolates, and gummies by state licensed

dispensaries, but not by the Plaintiffs, are in violation of the equal

protection requirements of the Fourteenth Amendment to the United

States Constitution. The Plaintiffs further pray that appropriate

injunctive relief be granted.

(ECF No. 1 at pp. 33–34; 35–36.)

At Count III, Plaintiffs seek declaratory judgment that Defendants’ restrictions on who may

sell and manufacture THC infused beverage products, restrictions on licensure (including

numerical restrictions and use of lottery system) as set forth in Counts I and II, “selective

enforcement of erroneous testing standards,” “State policies denying access to the METRC system

to the Plaintiffs and others similarly situated,” and “State policies allowing the sale of Federally

lawful THC infused beverages, chocolates, and gummies by state licensed dispensaries, but not by

the Plaintiffs,” are in violation of the dormant Commerce Clause. Id. at pp. 37–38.

The court thus understands the bases for Plaintiffs’ claims to fall into four categories: the

recreational cannabis licensure requirements (including Social Equity Applicant criteria,

numerical restrictions, lottery system, and diversity statement and business plan requirements);

METRC access; law enforcement seizure and testing of hemp flower; and alleged restriction of

the ability to sell edible cannabis products (including THC beverages) to state licensed dispensaries

only.

Following the Complaint, on June 16, 2025, Plaintiffs filed the Motion. (ECF No. 6.)

Plaintiffs seek an injunction as to the first three counts of the Complaint, but not as to their Takings

Clause claim (Count IV). In the Motion, Plaintiffs request:

A. That this Court issue a temporary restraining order and

preliminary injunction that the Defendants must treat anyone in the

business of selling Hemp Products before July 1, 2025, in the same

way as they treat the State licensed Cannabis dispensaries, with all

the same rights and privileges attaining to the state issued cannabis

license, and,

B. In the alternative, that the Defendants be enjoined from enforcing

the present Cannabis Reform Act against those selling hemp

products that are Federally lawful and are derived from Hemp

Products, as provided by COMAR 15.01.17.10; and,

C. That this Court enter a temporary restraining order and

preliminary injunction that affirms the analysis of hemp products in

accordance with the State of Maryland’s own COMAR 15.01.17.10,

that if tested 30 days or fewer preharvest, and with the issuance of a

certificate of analysis by a reliable laboratory, that a product shall

be deemed hemp and not cannabis and that to do otherwise is a

violation of the equal protection clause and due process clause of the

United State Constitution; and,

D. That this Court enter a temporary restraining order and

preliminary injunction declaring that there shall be an interstate

market in Federally lawful hemp infused beverages and other Hemp

Products, without regard for possession of a State issued cannabis

license; and,

E. That this Court enter a temporary restraining order and

preliminary injunction against the Defendants issuing any additional

cannabis licenses until the conditions of such issuance of licenses

are determined to be fair and lawful; and,

F. That this Court enter a temporary restraining order and

preliminary injunction that the hemp retailers and the state cannabis

licensees must be treated equally with state dispensaries in regard to

the sale of Federally lawful hemp products.

(ECF No. 6 at pp. 30–31.)

On June 20, 2025, Judge Adam B. Abelson ordered the parties to meet and confer. and file

a status report regarding: (a) whether the parties have agreed on a briefing schedule for Plaintiffs’

Motion, and (b) if not, any competing proposals for a briefing schedule. (ECF No. 10.) This case

was then reassigned to the undersigned. On July 3, the parties agreed to collapse Plaintiffs’ request

for temporary restraining order and preliminary injunction, submitted a proposed joint briefing

schedule, and agreed to the scheduling of a preliminary injunction hearing on August 7. (ECF No.

21.) In accordance with the briefing schedule, State Defendants filed their opposition to the

Motion on July 3 (ECF No. 20); and Defendant Richard Worley submitted a Motion to Dismiss

on July 7 (ECF No. 22), which Plaintiffs oppose (ECF No. 28.)5

II. LEGAL STANDARD

“A preliminary injunction is ‘an extraordinary remedy’ that ‘may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.’” Pierce v. N. Carolina State Bd. of

Elections, 97 F.4th 194, 209 (4th Cir. 2024) (quoting Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008)); see Benisek v. Lamone, 585 U.S. 155, 158 (2018) (noting that “a preliminary

injunction is ‘an extraordinary remedy never awarded as of right’”). As such, preliminary

injunctive relief is to be “granted only sparingly and in limited circumstances.” St. Michael’s

Media, Inc. v. Mayor & City Council of Baltimore, 566 F. Supp. 3d 327, 351 (D. Md. 2021), aff’d,

No. 21-2158, 2021 WL 6502219 (4th Cir. Nov. 3, 2021), and aff’d, No. 21-2206, 2021 WL

6502220 (4th Cir. Nov. 13, 2021) (quoting Micro Strategy, Inc. v. Motorola, Inc., 245 F.3d 335,

339 (4th Cir. 2001)).

5 The court addresses Defendant Worley’s Motion to Dismiss by separate memorandum opinion and order.

A plaintiff seeking preliminary injunctive relief “must establish that 1) they are likely to

succeed on the merits; 2) they are likely to suffer irreparable harm absent preliminary relief; 3) the

balance of the equities favors the requested injunctive relief; and 4) that relief is in the public

interest.”6 Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 339 (4th Cir.

2021) (citing In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 170–71 (4th Cir. 2019)).

These factors were established by the Supreme Court in Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7 (2008). “[P]laintiff bears the burden of establishing that each of these

factors supports granting the injunction.”7 Direx Israel, Ltd. v. Breakthrough Med. Corp., 952

F.2d 802, 812 (4th Cir. 1991) (citing cases); see St. Michael’s Media, Inc., 566 F. Supp. 3d at 351

(same). As to likelihood of success on the merits, “[a]lthough plaintiffs need not establish a

certainty of success, they must make a clear showing that they are likely to succeed at trial.” Real

Time Med. Sys., Inc. v. PointClickCare Techs., Inc., 131 F.4th 205, 223 (4th Cir. 2025) (quoting

Roe v. Dep't of Def., 947 F.3d 207, 219 (4th Cir. 2020)).

III. ANALYSIS

A. Standing

The Constitution extends the judicial power of Article III courts to “cases” or

“controversies.” U.S. CONST. art. III, § 2, cl. 1. The doctrine of standing, among others,

“implements” this limit. Carney v. Adams, 592 U.S. 53, 58 (2020). “Article III standing is ‘part

and parcel of the constitutional mandate that the judicial power of the United States extends only

6 When a plaintiff seeks preliminary injunctive relief against the government, the balance of the equities and public

interest factors merge. Nken v. Holder, 556 U.S. 418 (2009).

7 “Because preliminary injunction proceedings are informal ones designed to prevent irreparable harm before a later

trial governed by the full rigor of usual evidentiary standards, district courts may look to, and indeed in appropriate

circumstances rely on, hearsay or other inadmissible evidence when deciding whether a preliminary injunction is

warranted.” St. Michael’s Media, Inc. v. Mayor & City Council of Baltimore, 566 F. Supp. 3d 327, 352 (D. Md. 2021),

aff’d, No. 21-2158, 2021 WL 6502219 (4th Cir. Nov. 3, 2021), and aff’d, No. 21-2206, 2021 WL 6502220 (4th Cir.

Nov. 13, 2021) (quoting G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 725–26 (4th Cir. 2016)).

to cases and ‘controversies.’” Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir.

2020) (quoting Libertarian Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)).

Accordingly, as a threshold matter, the court must determine whether Plaintiffs have standing to

bring this action.

To establish standing:

First, the plaintiff must have suffered an injury in fact that is both

concrete and particularized and actual or imminent, not conjectural

or hypothetical. Second, the plaintiff's injury must be fairly traceable

to the challenged action of the defendant, meaning that there must

be a causal connection between the injury and the conduct

complained of. Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.

Dep’t. of Educ v. Brown, 600 U.S. 551, 561 (2023) (citations omitted) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992)). Important here, an “abstract general interest common to

all members of the public, no matter how sincere or deeply committed a plaintiff is to vindicating

that general interest on behalf of the public,” cannot establish an “injury in fact.” Carney, 592

U.S. at 59.

Plaintiffs “must demonstrate standing ‘with the manner and degree of evidence’ required

at the relevant ‘stage[] of the litigation.’” Fernandez v. RentGrow, Inc., 116 F.4th 288, 294 (4th

Cir. 2024) (quoting Lujan, 504 U.S. at 561). On a motion for preliminary injunction, “that means

they ‘must make a clear showing that they are likely to establish each element of standing.’” Am.

Fed’n of Tchrs. v. Bessent, 772 F. Supp. 3d 608, 630 (D. Md. 2025) (quoting Murthy v. Missouri,

603 U.S. 43, 58 (2024)).

1. Plaintiffs Lack Standing to Challenge CRA Licensing Requirements

Plaintiffs’ primary grievance is with the provisions of the CRA relating to applications for

recreational cannabis licenses. In each of the three counts subject to the Motion, they seek

declaratory judgment that:

A. The State of Maryland social equity restrictions upon licensure

were and are in violation of the equal protection [and due process]

requirements of the Fourteenth Amendment of the United States

Constitution. The Plaintiffs further pray that the Court order

appropriate injunctive relief.

B. The State of Maryland numerical restrictions upon licensure were

and are in violation of the equal protection [and due process]

requirements of the Fourteenth Amendment of the United States

Constitution. The Plaintiffs further pray that the Court order

appropriate injunctive relief.

C. The State of Maryland “lottery system” for licensure is and was in

violation of the equal protection [and due process] requirements of

the Fourteenth Amendment of the United States Constitution. The

Plaintiffs further pray that the Court order appropriate injunctive

relief.

. . .

F. The requirement of a “detailed diversity statement” and business

plan as part of the licensing review process, without any oversight to

prevent arbitrary or capricious determinations of eligibility, are in

violation of the equal protection requirements of the Fourteenth

Amendment to the United States Constitution. The Plaintiffs further

pray that appropriate injunctive relief be granted.

ECF No. 1 at pp. 33–36; see also id. at p. 37 (“The Defendants, by restricting licensure in the

manner set forth in Counts I and II of this Complaint. . . are in violation of the dormant commerce

clause.”).

The court must therefore determine whether Plaintiffs have shown they suffered a concrete

or imminent, particularized injury in fact caused by the above-described aspects of the licensing

system that is “over and above the abstract generalized grievance suffered by all citizens of

[Maryland] who (if [Plaintiffs are] right) must live in a State subject to an unconstitutional [license]

selection criterion.” Carney, 592 U.S. at 59. Plaintiffs have not made this showing; rather, their

complained-of injury is precisely the type of generalized grievance described above.

In Carney, the Supreme Court found the plaintiff, a Delaware lawyer who identified as a

political independent, lacked standing to challenge Delaware’s requirement that judicial

appointments to certain courts reflect a partisan balance between Democrats and Republicans

because he had not applied for a judicial appointment. 592 U.S. at 61–63. The Court determined

that the plaintiff’s “bare statement of intent alone”—that he “would apply for any judicial

position”—was unavailing given the “context of a record that shows nothing more than an abstract

generalized grievance.” Id. at 66. Drawing on its precedent “that an injury in fact requires an

intent that is concrete,” the Court contrasted the plaintiff in Carney with plaintiffs in other cases

who unsuccessfully applied for a position affected by the challenged policy or showed they

regularly applied for similar positions; the latter group of plaintiffs satisfied Article III’s injury-in-

fact requirement by showing concrete intent instead of “some day intentions.” Id. at 64–66 (citing

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Northeastern Fla. Chapter, Associated

Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993); Gratz v. Bollinger, 539

U.S. 244, 262 (2003)).

The Fourth Circuit, and this court, have also found plaintiffs failed to show an injury in

fact when they sought to challenge an application process in which they had not participated. See,

e.g., S. Blasting Servs., Inc. v. Wilkes Cnty., NC, 288 F.3d 584, 595 (4th Cir. 2002) (finding

plaintiffs could not demonstrate actual injury because they “have never even applied for a permit,

much less been denied one”); Menders v. Loudoun Cnty. Sch. Bd., 65 F.4th 157, 163 (4th Cir.

2023) (holding plaintiffs failed to establish an Article III injury because they did not allege that

they applied to the contested program).

The Supreme Court is clear, however, that Plaintiffs need not “translate” their desire for

the license “‘into a formal application’ where that application would be merely a ‘futile gesture.’”

Carney v. Adams, 592 U.S. 53, 66 (2020) (quoting Teamsters v. United States, 431 U.S. 324, 365–

366 (1977)). Plaintiffs can still show injury-in-fact if they were “able and ready” to apply and that

“a discriminatory policy” prevented them from doing so on equal footing with competitors. Jensen

v. Maryland Cannabis Administration, 719 F. Supp. 3d 466, 475 (D. Md. 2024) (citing Gratz, 539

U.S. at 262).

In Jensen, this court found that a plaintiff had standing to challenge the CRA’s licensing

requirements even without having submitted an application to the lottery because the plaintiff

demonstrated she did not qualify as a social equity applicant. There, the plaintiff had submitted a

“verification request” for certification as to whether she met the social equity criteria; and the

MCA denied this request. This court found the plaintiff was not required to then submit the formal

application that was available only to those who successfully verified their social equity eligibility.

Jensen, 719 F. Supp. 3d at 475, 477 n.8.8 This court additionally noted that plaintiff was “a

successful retail cannabis professional who has applied for cannabis licenses in several states and

was easily ‘ready and able’ to provide the business plans and other documentation the application

required, had such an endeavor not been obviously doomed to fail.” Id.

No Plaintiff ever applied for a Maryland recreational cannabis license. (ECF No. 1 ¶ 69.)

They allege, however, that they are “willing, ready and able to apply for licenses if those licenses

8 The Jensen court explained: “Plaintiff and Defendants agreed at the hearing that Plaintiff was unable to submit the

formal application without first receiving social equity applicant verification, even if she could have begun that

application without the verification. Plaintiff was well aware that she would not receive social equity verification, and

she was not required to begin an application that would have obviously been a ‘futile gesture’ in order to establish

injury.” 719 F. Supp. 3d at 475 (emphasis in original). The court further made clear that Jensen had submitted a (pre-

application) social equity verification request, which was declined: “[I]n Plaintiff's ‘verification request,’ she certified

that she had no address to submit from a disproportionately impacted area, and the only academic transcripts she

submitted were those from California State University at Long Beach.” Id. at 477 n.8.

are granted via reasonable and objective criteria.” Id. Plaintiffs acknowledge that to receive an

application, there are two stages: first, qualify as a social equity applicant; and second, receive a

license through the lottery system. Id. ¶ 36. But Plaintiffs do not allege that they sought to qualify

as social equity applicants. Instead, they submit that “Plaintiffs have little or no prospect of

obtaining a license in the first round of ‘social equity’ licensing.” Id. ¶ 47. There are no allegations

that any Plaintiff submitted a first-round social equity application or a final application. There are

no allegations of any specific steps any Plaintiff took to qualify for a license.

Another troubling aspect of Plaintiffs’ Complaint is the generalized nature of its

allegations. “[S]tanding is not dispensed in gross; rather, plaintiffs must demonstrate standing for

each claim that they press and for each form of relief that they seek.” TransUnion LLC v. Ramirez,

594 U.S. 413, 431 (2021). The Complaint lacks specific allegations about the individual Plaintiffs’

ability to qualify as social equity applicants. Instead, Plaintiffs allege that “some of them cannot

obtain a license under any scheme the State has devised, and most likely will never obtain a license

under any scheme the State has devised.”9 (ECF No. 6 at p. 19.)

In the Complaint, Plaintiffs allege:

The Plaintiff retailers were and are willing to be licensed as

recreational cannabis dispensaries if only for the purposes of

continuing to sell their Federally legal Hemp Products, but the new

Act made no provision for them to receive any licenses on a

provisional, expedited or priority basis, nor did it give the retailers

any grace period within which to even attempt to get a license.

Instead, it shut them down without recourse.

(ECF No. 1 ¶ 62.)

9 Plaintiffs’ reference to “any scheme the State has devised” appears to refer to the CRA’s definition of a social equity

applicant as an one who “has at least 65% ownership and control by one or more individuals who” has lived or attended

school in a disproportionately impacted area, or “(2) meets any other criteria established by the Administration.” MD.

CODE ANN., ALC. BEV. § 36-101(ff). While the CRA provides for other criteria, “the MCA has not adopted any

additional criteria pursuant to this authority and therefore the provision has never been applied.” (ECF No. 20 at p.

11 n.16.) Plaintiffs’ vague assertion that they will not be able to apply pursuant to any future adopted criteria is wholly

speculative and insufficient to show concrete or imminent injury.

In their reply memorandum, Plaintiffs assert:

[M]any of these Plaintiffs were, by the State’s own law, completely

ineligible to apply for a license. Further, the Plaintiffs would have

been required to submit to a licensing process that is itself

speculative and conjectural, based upon a lottery – with a

requirement to pay an onerous fee even if rejected. Under such a

circumstance, the State cannot insist that one apply for a license in

order to have standing.

(ECF No. 24 at p. 5.)

Plaintiffs thus suggest that the social equity applicant requirement (or any other of the

challenged license application requirements) does not pose a barrier to licensure for some

Plaintiffs; rather, they did not apply because the CRA did not allow them to receive the licenses

on “a provisional, expedited, or priority basis.” Id.

Plaintiffs fail to make clear which of them was “ineligible to apply” and why. Plaintiffs’

general assertion that they “would have been required to submit to a licensing process that is itself

speculative and conjectural” and “require[d] to pay an onerous fee even if rejected” is not an injury

in fact. (ECF No. 24 at p. 5.) These same allegations are true of any Maryland citizen interested

in the recreational cannabis license and its attendant privileges. See Carney v. Adams, 592 U.S.

53, 59 (2020) (explaining that “a plaintiff cannot establish standing by asserting an abstract

‘general interest common to all members of the public’”).

Contrary to Plaintiffs’ assertion, neither the State nor this court calls for them to have

applied for a license to show standing. Under Supreme Court and this court’s precedent, however,

Plaintiffs must at the very least show they were “able and ready” to apply for licensure and the

allegedly discriminatory nature of the licensing criteria prevented them from doing so. As

addressed above, Plaintiffs have not made a clear, Plaintiff-specific showing that they were each

able and ready to apply for licensure but did not do so because of the CRA’s social equity applicant,

numerical, or lottery requirements.

As for the second round of licensing, as set forth above, the application criteria will not be

set until the MCA completes a disparity study. MD. CODE ANN., ALC. BEV. § 36-404(e)–(g).

Plaintiffs admit that Senate Bill 215 does not alter this:

[T]he General Assembly has passed new legislation as of 2025 re-

affirming that the second round of licenses, depending upon the

results of a study as to whether further social equity programs are

needed, will either be awarded to minority and women owned

businesses by lottery, or again, by a random lottery for the remaining

licenses available.

(ECF No. 1 ¶ 50.) Plaintiffs do not allege any efforts to apply for the second round of licensing;

nor could they inasmuch as the MCA has not yet determined the application criteria for the second

round. See Menders, 65 F.4th 157 at 163 (finding plaintiffs lacked standing when they had not

applied or even alleged they were prevented from participating in the program).

Plaintiffs lack standing to challenge the requirements of the CRA licensing process, as none

of them applied for a license in the first round and they fail to show they were otherwise “able and

ready” to do so as the applicable precedent describes. See Jensen, supra. Any effort to challenge

the requirements for second-round applicants is premature, as the MCA has not yet determined

what, if any, remedial measures they will employ in the lottery process for second round licenses.

2. Plaintiffs Lack Standing to Challenge the CRA’s Market Share Requirement

Plaintiffs fair no better in demonstrating standing to challenge the CRA’s requirement that

licensed cannabis dispensaries “ensure that at least 25% of cannabis and cannabis products in the

dispensary are from social equity licensees and growers and processors that do not share common

ownership with the dispensary.” MD. CODE ANN., ALC. BEV. § 36-410(a)(3). Plaintiffs repeatedly

aver that they sell hemp, as opposed to cannabis, products. See, e.g., ECF No. 1 ¶ 22 (“It is hemp,

rather than cannabis (which has much higher levels of Delta-9 THC) that is grown by the Plaintiff

farmers in this case.”); ECF No. 6 ¶¶ 1, 6, 7, 13, 25.

Plaintiffs fall far short of demonstrating a concrete, imminent injury from this requirement.

First, as discussed above, there is no dispute that they are not currently licensed dispensaries, and

they do not allege they sought to become licensed. Second, they repeatedly aver that they do not

sell cannabis or cannabis products; and they do not allege that they sought to place their products

in licensed dispensaries and the CRA shelf requirement prevented them from doing so.

In their reply memorandum, Plaintiffs suggest that the shelf space requirement applies to

both cannabis and hemp products, and ask this court to enter “judgment by consent” or for the

State to stipulate to the fact that it applies to only cannabis products. First, nothing in the plain

language of the requirement indicates application to hemp products. Second, and determinatively,

it is Plaintiffs’ burden to establish standing to challenge the requirement in the first instance, which

they fail to do. And while the State by all appearances declines the invitation to enter a consent

decree, it bears mentioning that this court declines to enter judgment that the requirement does not

apply to Plaintiffs when Plaintiffs offer nothing to suggest that the requirement has ever been

applied to, or injured, them; or that such application and resultant harm is imminent.

3. Plaintiffs Lack Standing to Challenge Hemp Flower Searches and Seizures

Plaintiffs also fail to establish standing to challenge the alleged Hemp Flower searches and

seizures. In pertinent part, Plaintiffs aver: “[s]everal hemp retailers in Baltimore City have been

the subject of search and seizure warrants, and in at least one case, criminal charges for the sale of

‘cannabis’ based upon testing of the seized product.” (ECF No. 6 ¶ 43.) Notably, Plaintiffs do not

allege that any Plaintiff or Maryland Hemp Coalition member was a target of any such search and

seizure. Instead, they insist, “Plaintiffs who engage in the sale of hemp flower have a reasonable

apprehension that they may be targeted for similar unlawful searches, seizures and enforcement

actions, and seek an injunction and declaratory judgment that such seizures are unlawful.” Id. ¶

46. This does not come close to demonstration of concrete, particularized, imminent injury from

law enforcement searches.

4. Plaintiff Ira Cooke Lacks Standing

The Complaint contains the following allegations regarding Plaintiff Ira Cooke:

IRA COOKE is an individual who is a retired attorney and a cancer

survivor who has suffered from digestive and appetite problems

since the time of suffering esophageal cancer several years ago. He

first became aware of the medicinal properties of Hemp Products

during that ordeal, and has been a regular customer of the retail store

operated by J. WYAND, INC., d/b/a SIMPLE PLEASURES. As a

consumer of the product in question, he values friendly customer

service, knowledgeable staff, and competitive pricing, which he has

found at retail hemp establishments but has not found at state

licensed cannabis dispensaries. He asserts his right as a consumer to

buy from the retail stores of his choosing, rather than of the State of

Maryland’s choosing.

(ECF No. 1 ¶ 13.)

“When the plaintiff is not himself the object of the government action or inaction he

challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.”

Summers v. Earth Island Inst., 555 U.S. 488, 493–94 (2009). To meet this substantially more

difficult burden, a plaintiff must “demonstrate a realistic danger of sustaining a direct injury as a

result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298 (1979). A plaintiff does not “establish the required burden for standing

purposes” when he alleges “minor inconveniences, additional costs and logistical hurdles” as these

“do not constitute an ‘absolute deprivation’ of the plaintiff[‘s] rights.” N. Virginia Hemp & Agric.,

LLC v. Virginia, 125 F.4th 472, 489–90 (4th Cir. 2025).

Here, Plaintiff Cooke is not the object of the CRA, as the CRA regulates sellers, not

consumers, of cannabis. Further, Plaintiff Cooke’s alleged injury is that he cannot shop from the

store of his choosing and instead has to shop from stores with worse customer service and higher

prices. These inconveniences and additional costs are not an injury sufficient to establish standing.

Id. Further, as explained above, Simple Pleasures does not allege it sought a license; therefore,

Plaintiff Cooke’s alleged injury is even further attenuated from the CRA than that of Plaintiff

Simple Pleasures. Moreover, the Complaint contains no allegation that Plaintiff Cooke sought

METRC access or was subject to a search and seizure of hemp flower. Accordingly, Plaintiff

Cooke lacks standing as to Plaintiffs’ claims related to the CRA, METRC or searches for/seizures

of hemp products.

5. Plaintiff Maryland Hemp Coalition, Inc. Lacks Standing

Membership organizations, like Plaintiff Maryland Hemp Coalition, Inc., may establish

standing based on their own injury or based on their members’ injuries; the latter standing basis is

known as representational or associational standing. Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll., 600 U.S. 181, 199 (2023).

To show standing based on its own injury, an association or member organization “must

satisfy the usual standards for injury in fact, causation, and redressability that apply to individuals.”

Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 393–94 (2024) (citing Havens

Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982)). “Like an individual, an organization may

not establish standing simply based on the ‘intensity of the litigant’s interest.’” Id. (quoting Valley

Forge Christian Coll. v. Ams. United for Separation of Church and State, 454 U.S. 464, 486

(1982)). Instead, the challenged actions must “directly affect[] and interfere[] with [the

organization’s] core business activities.” Id. at 395. The Fourth Circuit has “reaffirmed that a

plaintiff has suffered an organizational injury if the challenged policy or practice frustrated both

its purpose and caused a drain on its resources.” People for Ethical Treatment of Animals, Inc. v.

Tri-State Zoological Park of W. Maryland, Inc., 843 F. App’x 493, 495 (4th Cir. 2021). The

Supreme Court has warned, however, that “an organization that has not suffered a concrete injury

caused by a defendant’s action cannot spend its way into standing simply by expending money to

gather information and advocate against the defendant’s action.” Hippocratic, 602 U.S. at 394.

Alternatively, a member organization may establish standing through its members’

injuries. Students for Fair Admissions, 600 U.S. at 199. But, importantly, to establish

associational standing, “an organization must ‘make specific allegations establishing that at least

one identified member has suffered or would suffer harm.’” S. Walk at Broadlands Homeowner’s

Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (quoting Summers

v. Earth Island Inst., 555 U.S. 488, 498 (2009)).

Plaintiff Maryland Hemp Coalition, Inc., alleges it is “a member organization to forward

the cause of farmers of hemp in the State of Maryland.” (ECF No. 1 ¶ 4.) As for injury, it avers

the “hemp grown by these farmers is used in many of the products sold by the various retailer

Plaintiffs in this case. The diminution of the business of those retailers will also diminish the

business of the hemp farmers of Maryland, contrary to the mission of the Maryland Hemp

Coalition, Inc.” Id.

Maryland Hemp Coalition’s allegations are insufficient to establish standing based on

either its own injuries or those of its members. It has not alleged both a frustration of its purpose

and a related drain of its resources (People for Ethical Treatment of Animals, Inc., supra); instead,

its alleged harm amounts to a “mere disagreement with the policy decisions of the Maryland

legislature, which is insufficient to meet the constitutional threshold for an injury in fact.” Md.

Shall Issue, Inc. v. Hogan, 963 F.3d 356, 362 (2020). Additionally, for the reasons discussed

above, the other Plaintiffs in this action have not shown standing to challenge the CRA’s licensing

requirements, the other allegedly unconstitutional provisions of the CRA, or the recent

enforcement actions against hemp growers, and Maryland Hemp Coalition lodges no specific

allegations sufficient to demonstrate that at least one non-Plaintiff member has standing to

challenge same.

“It is well established that standing is a threshold jurisdictional issue that must be

determined first because without jurisdiction the court cannot proceed at all in any case.” Covenant

Media of N.C., L.L.C. v. City of Monroe, N.C., 285 F. App’x 30, 34 (4th Cir. 2008) (citations

omitted). For the reasons set forth above, the court determines that Plaintiffs do not have standing

to challenge the constitutionality of the CRA’s licensure application, shelf-space requirements, or

the recent hemp flower enforcement actions.

For the sake of completeness, the court proceeds to analyze the Motion assuming Plaintiffs

could establish standing to pursue their claims.

B. Eleventh Amendment Sovereign Immunity

The State Defendants urge that Plaintiffs face an additional jurisdictional bar to their

requested relief: sovereign immunity under the Eleventh Amendment. The Eleventh Amendment

provides that “the Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. Under the

Eleventh Amendment, states generally enjoy immunity from suit unless a state waives its

immunity, or the immunity is abrogated by Congress. See Board of Trustees of Univ. of Ala. v.

Garrett, 531 U.S. 356, 363–64 (2001) (providing that “[t]he ultimate guarantee of the Eleventh

Amendment is that nonconsenting States may not be sued by private individuals in federal court.

We have recognized, however, that Congress may abrogate the States’ Eleventh Amendment

immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of

constitutional authority” (citations omitted)); Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir.

2019) (holding “state sovereign immunity bars all claims by private citizens against state

governments and their agencies, except where Congress has validly abrogated that immunity or

the state has waived it”).

Eleventh Amendment immunity applies to instrumentalities of the state, and to state

officials sued in their official capacities. Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp.

3d 154, 167 (D. Md. 2022); see Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

Here, the State Defendants undisputedly fall into those two categories. Defendants Maryland

Cannabis Administration and the Maryland Alcohol, Tobacco, and Cannabis Commission are

instrumentalities of the state of Maryland. Defendants the Governor of Maryland, as well as the

Executive Directors of the MCA and the MATCC are state officials sued in their official capacities.

Accordingly, unless one of three exceptions—abrogation, waiver, or Ex Parte Young—applies, all

of the State Defendants enjoy sovereign immunity, and this court lacks jurisdiction over this action

to the extent it pursues them as defendants. Medigrow, LLC v. Natalie M. LaPrade Medical

Cannabis Comm., 487 F. Supp. 3d 364, 372 (D. Md. 2020).

With respect to abrogation, “Congress has not abrogated sovereign immunity for § 1983

suits.” Biggs v. N. Carolina Dep’t of Pub. Safety, 953 F.3d 236, 241 (4th Cir. 2020) (citing Quern

v. Jordan, 440 U.S. 332, 345 (1979)). As for the second exception, waiver, Maryland has neither

waived its sovereign immunity nor consented to suit in federal court. Id. The only remaining

question is whether, pursuant to Ex Parte Young, Plaintiff has identified and sought “equitable

relief from an ongoing violation of federal law.” Allen v. Cooper, 895 F.3d 337, 354 (4th Cir.

2018) aff’d, 589 U.S. 248 (2020).

Pertinent to this action, “suits for ‘prospective injunctive relief against state officials acting

in violation of federal law’ are permitted” pursuant to Ex Parte Young, 209 U.S. 123 (1908). Eller,

580 F. Supp. 3d at 168. “Under this limited exception, a federal court may issue prospective,

injunctive relief against a state official to prevent ongoing violations of federal law, such as when

the state officer is enforcing, or threatening to enforce, an allegedly unconstitutional state law.”

Id. “To invoke the exception, the plaintiff must identify and seek prospective equitable relief from

an ongoing violation of federal law.” Allen, 895 F.3d at 354.

Plaintiffs’ requests for declaratory and injunctive relief are not related to state officials or

an ongoing violation of federal law; thus, Ex Parte Young does not apply.10 Much of Plaintiffs’

requested relief relates to “The State of Maryland’s” policies and is not connected to the Defendant

State officials. See, e.g., ECF No. 1 at pp. 33–35 (requesting this court enter declaratory judgment

that “The State of Maryland social equity restrictions…”; “The State of Maryland numerical

restrictions…”; “The State of Maryland ‘lottery system’…”; “the State policies denying access to

the METRC system…”; “The requirement of a ‘detailed diversity statement’ and business plan…”;

“[T]he State policies allowing the sale of…” violate the Fourteenth Amendment). “The Ex Parte

Young exception only permits actions against state officials, not the State itself or its

instrumentalities.” Medigrow, 487 F. Supp. 3d at 373.

10 Defendants aver that Plaintiffs seek only declaratory relief; Plaintiffs respond that because they seek injunctive

relief in the Motion, it is irrelevant that the relief requested in the underlying claim is declaratory relief. Plaintiffs are

incorrect. Eleventh Amendment sovereign immunity is jurisdictional; it cannot be “deferred for a merits trial,” as

Plaintiffs request. (ECF No. 24 at p. 5.) Because Plaintiffs include requests for injunctive relief along with their

request for declaratory relief on each count, the court reads the Complaint to seek both declaratory and injunctive

relief.

To the extent Plaintiffs intend to bring their claims related to licensure against Defendant

Tabatha Robinson, the Executive Director of the MCA, Ex Parte Young still does not apply as

there is no alleged ongoing violation of federal law. The MCA has already completed issuing the

first-round licenses. “No federal court may issue a declaratory judgment on past state action,

where the action complained of and no other relief [i.e. injunctive relief] is available.” Int’l Coal.

For Religious Freedom v. Maryland, 3 F. App’x 46, 50 (4th Cir. 2001). Plaintiffs seek declaratory

judgment that the licensure requirements, as applied in the first round, violated the Fourteenth

Amendment and the dormant Commerce Clause; this requested relief is retrospective in nature.

Plaintiffs’ claims against Defendants Maryland Alcohol, Tobacco, and Cannabis

Commission, and its executive director, Jeffrey A. Kelley, and Richard Worley, as commissioner

of the Baltimore City Police Department arise from “[t]he selective enforcement of erroneous

testing standards, contrary to State and Federal Regulations as to hemp flower products, against

the hemp retailers and not against the state licensed dispensaries.” (ECF No 1 at p. 35.) In view

of the court’s above determination that Plaintiffs do not have standing to pursue their claims related

to these alleged searches and seizures, the court does not here address whether Ex Parte Young

applies to Plaintiffs’ claims as against Defendant Kelley.11

Finally, the State Defendants argue Wes Moore, in his official capacity as Governor of

Maryland is not a proper defendant to this action. The court agrees that Plaintiffs are unlikely to

show Governor Moore is an appropriate Defendant. The Fourth Circuit has made clear that “[t]he

mere fact that a governor is under a general duty to enforce state laws does not make him a proper

defendant in every action attacking the constitutionality of a state statute.” Waste Mgmt. Holdings,

Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (quotations omitted). Instead, “to be a proper

11 As stated above, the court addresses Defendant Worley’s pending Motion to Dismiss separately.

defendant in an action to enjoin an allegedly unconstitutional state law, the governor must have ‘a

specific duty to enforce’ that law.” Disability Rts. S.C. v. McMaster, 24 F.4th 893, 901 (4th Cir.

2022) (quoting Waste Mgmt., 252 F.3d at 331). Governor Moore has no specific duty to enforce

the CRA, and Plaintiffs do not argue otherwise.

Accordingly, the Eleventh Amendment bars Plaintiffs’ claims as against Defendants

Maryland Cannabis Administration, the Maryland Alcohol, Tobacco, and Cannabis Commission,

and the State of Maryland. Additionally, Governor Wes Moore is not a proper party to this action.

As described above, despite the jurisdictional bars of standing and immunity, the court nonetheless

addresses the Winter factors below.

C. Likelihood of Success on the Merits

1. Equal Protection Claim

In their first cause of action, Plaintiffs allege “[t]he present Maryland Cannabis Reform

Act, in its social equity restrictions, set asides for minority and women business applicants,

numerical restrictions upon licensure, and licensure by lottery, violated the rights of Plaintiffs to

equal protection of the laws under the Fourteenth Amendment.” (ECF No. 1 ¶ 108.)

As the Fourth Circuit has explained,

[E]qual protection “is essentially a direction that all persons

similarly situated should be treated alike.” See City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87

L.Ed.2d 313 (1985). Thus, a plaintiff challenging a state statute on

an equal protection basis “must first demonstrate that he has been

treated differently from others with whom he is similarly situated

and that the unequal treatment was the result of intentional or

purposeful discrimination.” See Morrison v. Garraghty, 239 F.3d

648, 654 (4th Cir. 2001) (citing City of Cleburne, 473 U.S. at 439-

40, 105 S.Ct. 3249). If that initial showing has been made, “the court

proceeds to determine whether the disparity in treatment can be

justified under the requisite level of scrutiny.” Id. At that step, a

court generally presumes that the statute is valid and will reject the

challenge “if the classification drawn by the statute is rationally

related to a legitimate state interest.” See City of Cleburne, 473 U.S.

at 440, 105 S.Ct. 3249.

Kolbe v. Hogan, 849 F.3d 114, 146 (4th Cir. 2017), abrogated on other grounds by New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

Here, the CRA discriminates between similarly situated people by screening license

applicants for social equity status defined as follows:

An applicant for a cannabis license or cannabis registration that

(1) has at least 65% ownership and control held by one or more

individuals who:

(i) have lived in a disproportionately impacted area for at least 5 of

the 10 years immediately preceding the submission of the

application;

(ii) attended a public school in a disproportionately impacted area

for at least 5 years; or

(iii) for at least 2 years, attended a 4-year institution of higher

education in the State where at least 40% of the individuals who

attend the institution of higher education are eligible for a Pell Grant;

MD. CODE ANN., ALC. BEV. § 36-101(ff).

The court notes, however, that people who do not fit this description may still own licensed

businesses provided 65% of the ownership of the company qualifies as set forth above. Id. The

above criteria do not, as Plaintiffs assert, discriminate between (otherwise) similarly situated

applicants on the basis of race or gender. Senate Bill 215 does not alter the CRA’s provision that

for the second round of licensing, if the MCA, in cooperation with other State agencies,

“determines that a disparity study demonstrates a strong basis in evidence of business

discrimination against firms owned by minorities and women in the Maryland cannabis market,”

it shall issue the second-round licenses “applying minimum licensing qualifications and employing

remedial measures consistent with constitutional requirements.” Id. § 36-404(e)–(g); 2025 Md.

Law ch. 120. The State Defendants assert that the MCA has not yet completed this study or

determined whether it will employ remedial measures in issuing the licenses. (ECF No. 20 at p.

18.) Plaintiffs concede that the second round of licensing depends on the result of the study. (ECF

No. 1 ¶ 50.)

The CRA is clear that if the disparity study “does not demonstrate a strong basis in evidence

of business discrimination against firms owned by minorities and women in the Maryland cannabis

market, the Administration shall enter each applicant that meets the minimum qualifications

established by the Administration into a lottery[.]” MD. CODE ANN., ALC. BEV. § 36-404(g)(1).

In short, the current (or, more accurately, the most recently established) licensing system does not

(and did not) discriminate on grounds of race or gender. To the extent the second round

contemplates discriminating on these grounds, any challenge is premature – the MCA has not

decided whether it will consider these factors. Therefore, the court is not in a position to examine

any potential action (or inaction) of the MCA or the potential reasons for same.

Where, as here, a plaintiff has not alleged that he was deprived of a fundamental right or

subjected to discrimination based on a suspect classification, the court will uphold a challenged

classification so long as it is rationally related to a legitimate state interest. Rational basis scrutiny

is highly deferential; “a government entity ‘need not actually articulate at any time the purpose or

rationale supporting its classification,’ and it is not required to produce evidence showing the

rationality of its classification.” Pulte Home Corp. v. Montgomery Cnty., 909 F.3d 685, 693 (4th

Cir. 2018) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).

The State Defendants submit that “[t]he Legislature designed the criteria by which one may

qualify as a Social Equity Applicant to direct the economic benefit of cannabis legalization towards

those communities that suffered disproportionate harms in the course of cannabis prohibition;”

and “the criteria are designed to reach those who lived in and attended schools in areas with

disproportionately high rates of cannabis arrests.” (ECF No. 20 at p. 36.) While Plaintiffs

repeatedly insist that the State has no rational basis for choosing to construct the licensing system

in the way set forth in the CRA, their protestations amount to distaste for the State’s policy choices.

See ECF No. 1 ¶ 105 (“There is no rational basis for conducting the issuance of such licenses based

upon social equity or minority and women owned business preferences.”); id. ¶ 39 (“The social

equity factors and geographical factors considered for social equity status have no rational

relationship to any public safety or health concerns.”).

Plaintiffs’ dissatisfaction with the Social Equity Applicant criteria does not amount to a

showing that they are likely to succeed on their equal protection claim. “[E]qual protection is not

a license for courts to judge the wisdom, fairness, or logic of legislative choices.” F.C.C. v. Beach

Commc’ns, Inc., 508 U.S. 307, 313 (1993). The State Defendants provide reasons why the State

defined Social Equity Applicants in the manner it did, and these reasons rationally relate to the

State’s articulated aims. “In areas of social and economic policy, a statutory classification that

neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld

against equal protection challenge if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification.” Id. Plaintiffs fail to make a showing they are likely

to succeed on the merits of their equal protection claim.

To the extent Plaintiffs’ equal protection claim rests not on the social equity applicant

criteria, but instead on the CRA’s numerical restrictions, use of a lottery, or diversity statement

and business plan requirements, Plaintiffs do not even allege that these aspects of the CRA

discriminate between potential applicants at all – because they do not do so. Said differently, these

aspects of the CRA are equally applicable to all. Similarly, the CRA does not discriminate between

classes of people eligible to grow, sell, or distribute edible cannabis.12 Plaintiffs are unlikely to

succeed on any equal protection claim rooted in these provisions.

Regarding the MCA’s restriction of METRC access to licensees only, METRC access is

not a fundamental constitutional right; nor are non-licensees a suspect class. The State Defendants

submit that “Plaintiffs are not permitted access to MCA’s METRC system because they are not

licensed, and therefore MCA is not tracking the products they cultivate and sell.” (ECF No. 20 at

p. 20–21.) Against the backdrop of the highly deferential degree of scrutiny applicable here,

Plaintiffs are unlikely to succeed on an equal protection claim based on METRC access.13

Plaintiffs are unlikely to succeed on the merits of their Fourteenth Amendment equal

protection claim.

2. Due Process Claim

The Due Process clause—that “[n]o State shall . . . deprive any person of life, liberty, or

property, without due process of law”—“provides heightened protection against government

interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521

U.S. 702, 720 (1997); U.S. CONST. amend. 14, § 1.

Plaintiffs do not argue that they possess a fundamental right to sell hemp products. (ECF

No. 24 at p. 10 (“Plaintiffs have never claimed there is a fundamental right to sell THC

products.”).) As set forth above, where neither a fundamental right nor suspect classification is at

issue, “[t]he law should be upheld unless there is no ‘reasonably conceivable state of facts that

could provide a rational basis for [the statute].’” Prynne v. Settle, 848 F. App’x 93, 106 (4th Cir.

12 Plaintiffs allege that Maryland allows only licensed cannabis dispensaries to sell edible cannabis products. The

State Defendants dispute this allegation. While Maryland regulates certain qualities of edible cannabis products, it

does not restrict the retail of same to licensed dispensaries. Plaintiffs cite no State law or regulation stating otherwise.

13 The court will not expend space to address Plaintiffs likelihood of success on their equal protection claim based on

alleged discriminatory searches and seizures of hemp flower products. Plaintiffs do not allege they were subject to

any of these searches, and they do not specifically allege the circumstances of the searches they reference. Plaintiffs

fail to demonstrate standing to pursue any claims arising from these searches.

2021). For all of the reasons set forth above, the State has shown a rational basis for its policy

choices embodied in the CRA, as well as its various other policy choices challenged here. As

such, Plaintiffs are unlikely to succeed on their due process claim.

3. Dormant Commerce Clause Claim

In their third cause of action, Plaintiffs allege the CRA’s restrictions on licensure and on

who may sell THC beverages and edible products, as well as Defendants’ “selective enforcement

of erroneous testing standards,” and the MCA’s limits on METRC access infringe the dormant

commerce clause.

The Commerce Clause of the Constitution empowers Congress “[t]o regulate

Commerce . . . among the several States.” U.S. CONST. art I, § 8, cl. 3. The Supreme Court has

long recognized that the Commerce Clause also contains a “negative implication”—the dormant

Commerce Clause—that “prohibits state laws that unduly restrict interstate commerce.” Dep’t of

Revenue of Ky. v. Davis, 553 U.S. 328, 337 (2008); Tenn. Wine & Spirits Retailers Assoc. v.

Thomas, 588 U.S. 504, 514 (2019). The dormant Commerce Clause is “driven by concern about

‘economic protectionism, that is, regulatory measures designed to benefit in-state economic

interests by burdening out-of-state competitors.” Davis, 553 U.S. at 337–38 (quoting New Energy

Co. of Ind. v. Limbach, 486 U.S. 269, 273–74 (1988)). “The dormant Commerce Clause restrains

‘the several States’ by limiting ‘the power of the States to erect barriers against interstate trade.’”

McBurney v. Young, 667 F.3d 454, 468–69 (4th Cir. 2012) aff’d, 569 U.S. 221 (2013) (quoting

Dennis v. Higgins, 498 U.S. 439, 446 (1991)).

When presented with a dormant Commerce Clause challenge to state economic regulation,

the court must first determine “whether [the] challenged law discriminates against interstate

commerce.’” Davis, 553 U.S. at 338. In this context, discrimination “simply means differential

treatment of in-state and out-of-state economic interests that benefits the former and burdens the

latter.” Or. Waste Sys., Inc. v. Dep't of Env't Quality, 511 U.S. 93, 99 (1994). A law may be

discriminatory “facially, in its practical effect, or in its purpose.” Just Puppies, Inc. v. Frosh, 565

F. Supp. 3d 665, 715 (D. Md. 2021), aff’d sub nom. Just Puppies, Inc. v. Brown, 123 F.4th 652

(4th Cir. 2024). If it discriminates against interstate commerce, a law is ‘virtually per se invalid,’”

and can survive the challenge “only if it ‘advances a legitimate local purpose that cannot be

adequately served by reasonable nondiscriminatory alternatives.’” Davis, 553 U.S. at 338 (quoting

Or. Waste Sys., 511 U.S. at 101). “[N]ondiscriminatory regulations that have only incidental

effects on interstate commerce are valid unless ‘the burden imposed on such commerce is clearly

excessive in relation to the putative local benefits.’” Or. Waste Sys., Inc., 511 U.S. at 99 (quoting

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

In-state Plaintiffs Charm City Hemp, Peace of Sunshine, Straf, Daniel Simmonds, Cannon

Apothecary, the Unlimited Experience Holding Company, the Maryland Hemp Coalition, and Ira

Cooke’s claims amount to allegations that the CRA and the State’s other complained of policies

harm their businesses while providing advantages to other, in-state businesses. “To the extent that

[a challenged State law] burdens in-state actors, these harms do not implicate the dormant

Commerce Clause, which is concerned with preventing states from boosting in-state business, not

impeding it.” Just Puppies, Inc v. Frosh, 457 F. Supp. 3d 497, 512 (D. Md. 2020) (citations

omitted). Even when a challenged law “provides a boon to some in-state actors at the expense of

others,” the dormant Commerce Clause is not implicated; “the constitution freely permits such

intra-state economic favoritism.” Id.

The remaining, out-of-state Plaintiffs, Endo, J. Wyand, and South Mountain Microfarm,

also fail to show a likelihood of success on their dormant Commerce Clause claim.14 Plaintiffs do

not allege that the CRA discriminates between in-state and out-of-state applicants on its face.

Plaintiffs also have not proffered a discriminatory effect of “caus[ing] local goods to constitute a

larger share, and goods with an out-of-state source to constitute a smaller share, of the total sales

in the market.” Exxon Corp. v. Governor of Md., 437 U.S. 117, 126 n.16 (1978).15 The CRA and

the State’s other challenged policies apply to in-state actors and out-of-state actors equally.16

Plaintiffs have also not set forth any evidence that Maryland acted with a discriminatory purpose

in passing the CRA or pursuing any of the other complained actions.17

Because Plaintiffs have not set out facts that could demonstrate that the CRA is

discriminatory, to show a likelihood of success, they must offer facts that could reasonably

establish the challenged law “indirectly burdens interstate commerce” and “the burden imposed

on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Or. Waste

14 While Plaintiff South Mountain Microfarm is a Maryland corporation (ECF No. 1 ¶ 8), it has “a THC beverage

under development in its West Virginia facility that is ready to begin distribution . . . and wishes to distribute that

product through hemp retailers in the State of Maryland.” Id. ¶ 81.

15 In the Complaint, Plaintiffs allege “[t]he regulations as applied further discriminate against Plaintiffs and Hemp

sellers in favor the state licensed Cannabis dispensaries because the latter are allowed to obtain hemp products,

including chocolates, gummies, and THC infused beverages, enter them into the METRC system, and sell them, while

the State of Maryland actively thwarts attempts by the Plaintiffs to do so.” (ECF No. 1 ¶ 103.) Plaintiffs’ complaint

is in effect that Defendants have discriminated against individual actors in commerce; this does not amount to a

dormant Commerce Clause violation. The dormant Commerce Clause “protects the interstate market, not particular

interstate firms, from prohibitive or burdensome regulations.” Exxon, 437 U.S. at 127–28. Plaintiffs lodge no

allegations about the effect of the challenged laws and policies on the overall market shares of in-state and out-of-

state goods.

16 The CRA does not, for example, require that applicants reside in Maryland. In this way, it is distinct from the state

laws at issue in two cases Plaintiffs cite: Northeast Patients Group v. United Cannabis Patients and Caregivers of

Maine, 45 F.4th 542 (1st Cir. 2024), and Lowe v. City of Detroit, 544 F. Supp. 3d 804 (E.D. Mich. 2021). This case

is also distinct from a third dormant Commerce Clause case Plaintiffs cite, Loki Brands v. Platkin, 2024 WL 4457485

(D.N.J. 2024). Unlike the facts of Loki, neither the CRA nor any other Maryland regulation defines or categorizes

hemp based on where it was cultivated or processed. See Loki, 2024 WL 4457485 at *10 (finding that the inclusion

of “in this State” to the definition of “Intoxicating Hemp Product” created “disparate treatment between hemp cultivate

din New Jersey and hemp derived from outside New Jersey.”).

17 Even if Plaintiffs could show Maryland acted with discriminatory purpose, “it is not entirely clear whether sinister

purpose alone suffices to violate the dormant Commerce Clause.” Just Puppies, 565 F. Supp. 3d at 723.

Sys., 511 U.S. at 99. Plaintiffs have not made this showing. They have neither shown nor

described an indirect burden to interstate commerce; and therefore likewise fail to mount a showing

that any such burden is outweighed by the local benefits of a well-regulated cannabis market.

It appears that Plaintiffs’ dormant Commerce Clause claim is rooted in “the new Cannabis

Reform Act amendments [Senate Bill 215] which are to be implemented on July 1, 2025” that

“allow only licensed dispensaries to sell THC infused beverages, and those beverages are required

to be obtained from Maryland licensed processors.” (ECF No. 6 ¶ 51.) Defendants insist that

Senate Bill 215 “affects only what will be able to be sold in on-site consumption lounges when

those businesses are licensed” (ECF No. 20 at p. 5), thus it does not “completely close[]” the THC

infused beverage market to out-of-state retailers. Plaintiffs categorically fail to show (or proffer

any evidence) that Senate Bill 215 – which, to be clear, merely adds on-site consumption licenses

to future licensing rounds and defines the beverages that these future on-site consumption locations

may retail – discriminates against out-of-state commerce.

Finally, while not raised by the parties, in Jensen, this court recently addressed the

applicability of the dormant Commerce Clause to recreational marijuana regulation generally, and

the CRA specifically. This analysis bears repetition in full:

Though it is admittedly a close call, this Court now joins with those

courts across the country that have found that the dormant

Commerce Clause does not apply to state recreational cannabis

laws. In so doing, this Court finds Judge Gelpí’s dissent in Northeast

Patients Group particularly persuasive. As Judge Gelpí said, there

may be an interstate market in recreational cannabis, but the fact this

market is illegal makes it fundamentally distinct from interstate

markets for other goods and renders it “constitutionally different in

kind.” Northeast Patients Grp., 45 F.4th at 558–59 (Gelpí, J.,

dissenting). The dormant Commerce Clause seeks to “preserve a

national market for competition undisturbed by preferential

advantages conferred by a State upon its residents or resident

competitors” because such an unencumbered market is presumably

in the public interest, but this goal is not served by encouraging such

a market for a good that Congress has already expressly declared to

be illegal and against the public interest. Id. (Gelpí, J., dissenting)

(citing Gen. Motors Corp. v. Tracy, 519 U.S. 278, 299, 117 S.Ct.

811, 136 L.Ed.2d 761 (1997)). Put simply, it defies common sense

to find that the dormant Commerce Clause, drawn from Congress’

power to regulate interstate commerce, prevents the states from

passing laws which inhibit a market which Congress has already

declared prohibited. As the District Court for the Northern District

of New York explained, applying the dormant Commerce Clause to

the recreational cannabis market “would only encourage out-of-state

participation in the [in-state] cannabis market, which would be

contrary to Congress’ exercise of Commerce Clause power in

enacting the [Controlled Substances Act].” Variscite NY Four, LLC,

2024 WL 406490, at *12.

This conclusion is further bolstered by an additional logical

inconsistency that would result from the dormant Commerce

Clause's application to the federally illegal cannabis market. It is

established that Congress can authorize states to discriminate

against interstate commerce. See S.-Cent. Timber Dev., Inc. v.

Wunnicke, 467 U.S. 82, 87–88, 104 S.Ct. 2237, 81 L.Ed.2d 71

(1984) (explaining that “Congress may redefine the distribution of

power over interstate commerce by permitting the states to regulate

the commerce in a manner which would otherwise not be

permissible.” (internal citation omitted) (cleaned up)). If the

dormant Commerce Clause applies to recreational cannabis laws,

however, the only way Congress could so authorize the states would

be to “speak out of both sides of its mouth on this issue,

simultaneously illegalizing marijuana while affirmatively granting

states the power to ‘burden interstate commerce in a manner which

would otherwise not be permissible.’” Northeast Patients Grp., 45

F.4th at 559 (Gelpí, J., dissenting) (quoting New England Power Co.

v. New Hampshire, 455 U.S. 331, 341, 102 S.Ct. 1096, 71 L.Ed.2d

188 (1982)). This contradiction further supports a finding that the

dormant Commerce Clause does not apply to the federally illegal

recreational cannabis market.

Jensen, 719 F. Supp. 3d 483–84. In view of Judge Hurson’s recent, thorough analysis, the court

is further unpersuaded of Plaintiffs’ likelihood of success on the merits of their dormant Commerce

Clause claim.

4. Doctrine of Laches

Even had Plaintiffs adequately established standing, and even were Defendants not entitled

to sovereign immunity, and even had Plaintiffs demonstrated a likelihood of success on the merits

of their claims, the doctrine of laches would prevent entry of Plaintiffs’ requested relief. In their

reply memorandum, Plaintiffs assert the doctrine of laches is inapplicable because Senate Bill 215

only became law in July 2025, and the challenged enforcement actions, which “are the primary

impetus for this filing,” occurred in spring of 2025. (ECF No. 24 at p. 5.)

The doctrine of laches is an affirmative defense to claims for equitable relief and requires

the defendant “to prove two elements: ‘(1) lack of diligence by the party against whom the defense

is asserted, and (2) prejudice to the party asserting the defense.’” Perry v. Judd, 471 F. App’x 219,

224 (2012) (quoting Costello v. United States, 365 U.S. 265, 282 (1961)). To establish the first

element, lack of diligence, a defendant must show that plaintiff “delayed inexcusably or

unreasonably in filing suit.” White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990). The second

element—prejudice to defendant—exists when a defendant shows “a disadvantage on the part of

the defendant in asserting or establishing a claim right or some other harm caused by detrimental

reliance on the plaintiff’s conduct.” Id.

Here, Plaintiffs filed the instant action almost two years after the effective date of the CRA.

Plaintiffs challenge the application process and issuance of licenses, but their lawsuit comes

eighteen months after the deadline for applications and over a year after the lotteries awarding

licenses. Thus, to the extent they challenge the first round of licensing, they have unreasonably

delayed in bringing the challenge. See Perry, 471 F. App’x at 228 (affirming doctrine of laches

applied where movant delayed in bringing suit for four months after applicable deadline).18 The

18 Additionally, in Jensen v. Maryland Cannabis Administration, this court found the plaintiff’s delay of two months

after submitting her Social Equity Applicant verification and four months after learning of the licensing program to

enactment of Senate Bill 215 does not remedy this delay. The Bill merely amends aspects of a

future licensing round; it does not alter the application process set forth in the 2023 law.

Defendants also satisfy the second element – a disadvantage or other harm caused by

detrimental reliance on the plaintiff’s conduct. Plaintiffs’ failure to timely challenge the CRA in

this court before the close of the application process, lottery, or issuance of licenses resulted in the

MCA and the State expending considerable resources to roll out and implement an entirely new

licensing scheme for cannabis dispensaries in Maryland, including conducting reviews, reading

applications, and administering the lottery. (ECF No. 20-13 ¶ 5.) For this court to declare the

licensing system unconstitutional now, years after the application and lottery processes have

concluded, would cause material, specific, avoidable prejudice to the State Defendants, and, while

not determinative, the court notes, would also prejudice the licensees.

The court concludes that to the extent Plaintiffs challenge the 2023 CRA and first round of

licensing set forth in, and carried out pursuant to, same, the doctrine of laches bars the issuance of

equitable relief. This conclusion is not altered by Plaintiffs’ allegations regarding Senate Bill 215

or recent enforcement actions, as Plaintiffs lack standing to challenge both.

Upon finding Plaintiffs unlikely to succeed on the merits of their claims, the court’s

analysis may conclude as Plaintiffs are required to satisfy all four Winter factors for entry of a

preliminary injunction. Despite the myriad reasons set forth above why the court will not grant

the requested preliminary injunction, the court addresses the remaining Winter factors below for

completeness.

bring suit tipped the balance of equities against entry of a preliminary injunction. 719 F. Supp. 466, 479 (D. Md.

2024). The court noted that, “[w]hile Plaintiff waited to file this suit, Defendants were processing applications, and

individuals were applying for Maryland retail cannabis licenses. Defendants have dedicated hundreds of thousands of

dollars and hundreds of staff hours to processing nearly 2,000 applications from individuals hoping for a license.

Defendants’ expenditure of time and resources contrasted with Plaintiff’s unhurried filing schedule and complete lack

of significant financial or other resources expended on the application strongly suggest that the balance of equities

weighs against the granting of the requested injunction.” Id. at 479–80. The same is true here.

D. Plaintiffs Have Not Shown They Are Likely to Face Irreparable Harm Absent the

Preliminary Injunction

A plaintiff may satisfy the irreparable harm prong by showing a likely constitutional

violation. Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330, 346 (4th Cir. 2021);

Jensen v. Maryland Cannabis Administration, 719 F. Supp. 3d 466, 478 (D. Md. 2024). Here,

Plaintiffs allege that Defendants violated their Equal Protection and Due Process rights, as well as

their rights under the dormant Commerce Clause. For the reasons set forth above, the court finds

Plaintiffs have not shown that the State Defendants likely violated the Constitution. Accordingly,

they have also not shown they risk irreparable harm stemming from constitutional violations.

Plaintiffs allege they face irreparable harm from “the onerous prospect of not being able to

sell the same products sold by the state licensed dispensaries, such as chocolates, gummies, and

THC infused beverages” and from “the prospect of unfair enforcement proceedings, including

prospective criminal charges.” (ECF No. 6 at p. 29.)

As the Supreme Court has “frequently reiterated,” plaintiffs seeking preliminary injunction

must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v.

Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008) (collecting cases and citing 11A

WRIGHT & MILLER’S FEDERAL PRACTICE AND PROCEDURE § 2948.1 (3d. ed.) (explaining that an

applicant must demonstrate that, in the absence of a preliminary injunction, “the applicant is likely

to suffer irreparable harm before a decision on the merits can be rendered” and that “a preliminary

injunction will not be issued simply to prevent the possibility of some remote future injury”)).

“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent

with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that

may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id.

The State Defendants assert that the MCA has not yet completed the disparity study

required by the CRA to set the criteria for the second round of licensing. (ECF No. 20 at p. 18.)

Plaintiffs do not dispute that this study is in progress and that the second round of licensing has

not yet commenced. (ECF No. 1 ¶ 50.) Senate Bill 215 does not otherwise alter the law concerning

sale of edible cannabis products. It is therefore unclear to the court how, if at all, Plaintiffs face

irreparable harm of the sort described from its passage. As to the alleged irreparable harm from

prospective enforcement proceedings, Plaintiffs make no showing to persuade the court that they

are likely to be subject to the enforcement proceedings they vaguely describe. That law

enforcement has recently conducted searches and seizures in the Baltimore area, and brought

charges where they found violations of state law, does not support the extraordinary remedy

Plaintiffs request.

E. The Balance of Equities and the Public Interest Weigh Against Granting the

Preliminary Injunction

“When a plaintiff seeks preliminary injunctive relief against the Government, the balance

of the equities and the public interest factors merge.” Coreas v. Bounds, 451 F. Supp. 3d 407, 429

(D. Md. 2020) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). “This is so because ‘the

government’s interest is the public interest’ in such a case.” Jensen, 719 F. Supp. 3d at 478

(emphasis original) (quoting Ass’n of Cmty. Cancer Ctrs. v. Azar, 509 F. Supp. 3d 482, 501 (D.

Md. 2020)).

Plaintiffs correctly assert that a state is not harmed by the entry of a preliminary injunction

“which prevents the state from enforcing restrictions likely to be found unconstitutional,” and that

the entry of same is in the public’s interest. Leaders of a Beautiful Struggle v. Baltimore Police

Dep’t, 2 F.4th 330, 336, 346 (4th Cir. 2021). Plaintiffs offer no other reasons why entry of a

preliminary injunction furthers the public interest. Here, as set forth in detail above, the court is

not persuaded that Plaintiffs have made a showing of likely success on the merits and thus have

not shown the balance of equities and public interest favor entry of a preliminary injunction.

IV. CONCLUSION

For the reasons set forth above, by separate order, Plaintiffs’ Motion for Preliminary

Injunction (ECF No. 6) shall be denied.

/S/

July 30, 2025 ________________________

Julie R. Rubin

United States District Judge