The Variscite Ruling: Shattering the In-State Preference Model in NY Cannabis Licensing
In a legal shockwave that will reshape not only New York’s cannabis industry but potentially the entire U.S. market, the Second Circuit’s decision in Variscite NY Four, LLC v. New York State Cannabis Control Board (Aug. 12, 2025) declared that New York’s cannabis licensing preference for those with in-state marijuana convictions is unconstitutional under the Dormant Commerce Clause (DCC).
This ruling—the most consequential Dormant Commerce Clause cannabis decision to date—directly threatens residency- and conviction-based preferences, deepens the circuit split, and places the licensing regimes of multiple states in immediate jeopardy.
What Provisions Were Struck Down or Put at Risk?
1. In-State Conviction Preferences
The Second Circuit flatly held that New York’s prioritization of applicants with in-state cannabis convictions unlawfully discriminates against out-of-staters. Even under the guise of social equity or restorative justice, the court found such provisions violate the DCC.
2. Residency Requirements
The ruling signals that any rule establishing preferential treatment for residents—explicitly or effectively—is unconstitutional. This includes the “significant presence” or principal place of business requirements still deployed in many states.
3. State-Tied Equity Criteria
Several core social equity factors favored by states—including New York—are now legally suspect if they tie eligibility benefits to in-state history, local residence, or state-specific convictions.
"The Dormant Commerce Clause does not tolerate local favoritism, even in the uncharted territory of state-regulated cannabis.” (See full decision)
Active and Pending Application Rounds
- Current applicants in New York’s adult-use licensing round are now in regulatory limbo. Awards or denials premised on in-state conviction preferences are vulnerable to challenge or reversal.
- Pending application windows in New York, Connecticut, and Vermont—all Second Circuit states—face heightened risk if they include residency or state-tied conviction eligibility.
- Litigation threat: Expect a surge of new lawsuits aimed at any licensing scheme or social equity bonus that inherently favors state residents or in-state criminal records.
Enforcement and Compliance Disruption
- Licensing authorities across the Second Circuit are likely to suspend, reexamine, or even retract application rounds and awards featuring now-illegal preference structures.
- Ongoing compliance: Dispensaries and applicants who receive (or fail to receive) licenses based on the now-invalidated rules could find their standing legally challenged for months or years.
Practical Contingency Steps for Regulators and Applicants
- Pause or revise existing licensing processes with state-linked preferences.
- Adopt neutral criteria—consider lottery systems, or metrics such as income, veteran status, or federally recognized economic hardship indicators that are not state-specific.
- Issue a "cure period": Give affected applicants a window to amend their submissions or requalify under new, DCC-compliant standards.
- Conduct an internal audit of all social equity parameters to remove any in-state or local-tied eligibility triggers.
For Applicants:
- Monitor updates from the New York State Cannabis Control Board and seek professional compliance guidance.
- Prepare to resubmit, supplement, or update applications in evolving lotteries or additional review rounds.
- Document the basis of any application denials or approvals for potential appeals during the transition.
Red-Flag Inventory: States Now Targeted for Litigation
States using residency, significant in-state presence, or in-state conviction as part of licensing/social equity criteria are now at risk. The Reuters analysis identifies these standouts:
- California: Several municipal and state-level social equity programs still tie eligibility to local or state residency or convictions.
- Washington: Licenses awarded based on state criminal history or residency are vulnerable.
- Maryland: New equity-centered frameworks with state-focused criteria are being challenged (see the ongoing Jensen v. Maryland Cannabis Administration).
- Rhode Island: Local licensing preferences identified as high-risk.
- Michigan, Missouri: Already subject to suit or recent court orders; programs requiring state residency for ownership or management have been blocked.
What Counts as a "Neutral" Social Equity Program Now?
- Disadvantaged status not tied to geography (e.g., federal poverty, disability, or veteran status)
- Impacted community based on broader metrics—such as arrest/incarceration rates—but NOT requiring in-state or local ties
- Randomized lotteries among all qualified applicants, with optional weighting that can sustain constitutional scrutiny
Programs should ensure that no eligibility or selection factor overtly or covertly favors in-state individuals over similarly situated out-of-state applicants.
After Variscite: What’s Next for the Industry?
- Wave of legal challenges: State medical and adult-use markets across the country must reassess their equity programs.
- Regulatory rewrites: Expect delays, re-opening of previous rounds, and possible mass invalidation of issued licenses in states that do not transition quickly.
- Circuit split deepens: The Supreme Court may soon be forced to clarify if/when the Dormant Commerce Clause limits apply to the federally illegal cannabis market.
Key Takeaways for Businesses and Consumers
- Licensing “local advantage” rules are now a litigation lightning rod.
- Applicants in NY, VT, CT, and other states with state-based preferences should be ready for policy pivots, lottery re-draws, and swift application modifications.
- Operators should audit their business structures for now-impermissible ownership or management residency requirements.
- Social equity applicants in all markets should track court developments and advocate for neutral, cross-jurisdictional criteria.
For ongoing updates, expert guidance, and personalized compliance strategies in the wake of Variscite and other regulatory shifts, visit CannabisRegulations.ai. Stay proactive—regulatory clarity in cannabis has never been more vital.
