ACLU-VT Sues Middlebury Over Regulation Of Legal Substance

The American Civil Liberties Union Foundation of Vermont has filed a lawsuit against the town of Middlebury and its health officer for their decision to unilaterally forbid a Middlebury businessman from selling a particular herb in his shop.

The suit was filed in Addison Superior Court on behalf of Jim Stone, who owned a shop in Middlebury until 2007. In the shop, among other items, Stone sold salvia divinorum, an herb that purportedly yields mild, short-term hallucinogenic effects when consumed. Salvia is not restricted in any way by the controlled substances laws of either Vermont or the federal government.

The suit alleges that despite salvia’s unregulated status, Middlebury town health officer Robert LaFiandra decided in April 2007 that salvia should not be sold in the town, and used his authority to issue an emergency health order barring Stone from selling salvia. The town’s select board subsequently issued a similar order barring Stone from selling salvia.

The lawsuit against LaFiandra and the town asserts that by singling out Stone for creation and enforcement of a unique prohibition against selling salvia, the defendants violated Stone’s right to due process. Moreover, the suit alleges that by inserting themselves into the arena of regulating the sale of food and drugs, the defendants violated Vermont law by overstepping the authority granted to municipalities.

“Vermont municipalities and their officers cannot simply decide for themselves what the law is,” said ACLU-VT Executive Director Allen Gilbert. “Regulation of food and drugs is the responsibility of the state and federal governments.”

ACLU-VT cooperating attorney Roger Kohn, who represents Stone in the lawsuit, noted that “Vermont law and the federal constitution protect individuals against the arbitrary actions of local officials who take it upon themselves to make laws out of thin air.” Kohn asked rhetorically, “What’s next? A town decides on its own that aspirin isn’t safe and can’t be sold? Or that abortions present a health hazard and can’t be performed in that town?”

The lawsuit asks the court to declare that the defendants’ actions violated Stone’s constitutional rights and exceeded the authority granted to municipalities under Vermont law. It asks the court for injunctive relief, barring the defendants from regulating Stone’s sale of salvia in the future. Damages are being sought to cover the costs Stone suffered as a result of the defendants’ actions.

Also representing Stone is ACLU Foundation of Vermont staff attorney Dan Barrett. Kohn is with the law firm of Kohn Rath Blackwood & Danon, LLP in Hinesburg. A copy of the complaint can be found at the ACLU of Vermont’s Web site, www.acluvt.org.

Read the lawsuit.