New Jersey’s adult-use cannabis law does not provide aggrieved individuals with a private right of action, according to a recent decision from a New Jersey federal court. 

The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), authorizes the legal sale and use of cannabis and cannabis products for residents 21 years and older. It also prohibits employers from taking an adverse action against an applicant or employee “because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items” or because of the presence of “cannabinoid metabolites” lawfully in the individual’s bodily fluid. In other words, CREAMMA prevents employers from taking any adverse employment action based on a positive drug test alone.

However, in a recent decision, Zanetich v. Wal-Mart Stores East, Inc d/b/a Walmert, Inc., et al., the New Jersey District Court clarified that only the state’s Cannabis Regulatory Commission (CRC) – and not private citizens – has the authority to enforce CREAMMA. Further, the New Jersey District Court confirmed that there is no common law claim for failure to hire.  

The Facts

In January 2022, the plaintiff, Erick Zanetich, applied for a job at a Wal-Mart store in New Jersey. Wal-Mart offered him the job subject to successful completion of a drug test. However, after his drug test revealed the presence of marijuana in his system, Wal-Mart rescinded the job offer. As a result, Zanetich filed a class-action lawsuit alleging two claims: (1) violation of CREAMMA and (2) failure to hire and/or termination in violation of New Jersey public policy.

The defendants moved to dismiss the complaint, arguing that CREAMMA does not explicitly provide a private cause of action and that New Jersey common law does not recognize a cause of action based on an employer’s failure to hire.

In response, Zanetich acknowledged CREAMMA’s text does not explicitly include a private cause of action, but instead argued that New Jersey’s legislature created an implied cause of action when it enacted the law. He also argued that New Jersey’s common law claim for wrongful termination (also known as a “Pierce claim”), extends to applicants’ claims arising from a failure to hire.

The Decision

The court disagreed. It noted that, by creating the CRC and providing it broad authority to investigate and prosecute “every violation” of the statute, the legislature did not imply a right for private citizens to sue. The court distinguished between a right (which CREAMMA clearly provides) and a remedy (which it does not). “[T]here is simply no indication that the Legislature intended to allow an individual to pursue a private cause of action for a violation of CREAMMA. Plaintiff has not pointed to any evidence of legislative intent to the contrary sufficient to overcome the reluctance to find an implied private cause of action when the Legislature has not explicitly created one.”

As for Zanetich’s common law claim, the court relied upon well-settled, prior decisions in holding that there is no cause of action under common law for failure to hire. 

In the conclusion to its opinion, the court noted that its decision leaves Zanetich without a remedy and essentially renders the language of the employment provision in CREAMMA “meaningless.” Therefore, it specifically called upon state lawmakers to “amend the statute to clearly evidence” an intent to create a private cause of action, “as it has previously done in many other employment related statutes.”

However, this is most likely not the final word on whether a private action exists under CREAMMA or whether Pierce claims will be extending to cover failure to hire claims. Mere days after the decision was issued, Plaintiff filed a Notice of Appeal.