Fake pot lawsuit thrown out of court, but head shops appeal

Fake pot, real lawsuit.

Fake pot, real lawsuit.

Minnesota's foray into the fake-marijuana wars is escalating.

A federal judge dismissed the lawsuit brought by four Minnesota head shops against the Drug Enforcement Agency, but they have already appealed their case to the Eighth Circuit Court of Appeals.

The head shops--the Hideaway in Dinkytown, Down in the Valley in the western suburbs, Disc and Tape and St. Cloud, and the Last Place on Earth in Duluth--filed the suit last month after the federal agency announced plans to make the sale of five major ingredients in synthetic marijuana products a felony offense.


Synthetic marijuana is a huge seller for these shops, amounting to more than half of their sales. Their suit alleged that the DEA was acting too fast and without any scientific basis.

But U.S. District Judge Patrick J. Schiltz dismissed the case last Friday, finding that the court couldn't hear the case because the ban hasn't gone into effect yet.

That argument doesn't make any sense to Marc Kurzman, the lawyer representing the head shops. "That's basically saying that people have to become felons and go to jail before they can challenge the DEA's decision-making," Kurzman said.

Yesterday Kurzman appealed the decision to the Eighth Circuit Court of Appeals, citing examples of other cases in which federal courts have allowed lawsuits before a new regulation goes into effect. He also filed a parallel legal challenge, called a Petition for Agency Review, in case the appeals court upholds the original decision.

The situation is unfolding quickly--the DEA has promised to put out a final version of its new regulation by Monday.

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