Bradley: Mississippi Medical Cannabis, Charles Dickens Style

By  on 

As we turn the calendar to another year, and because we run a cannabis law blog, it seems fitting to write about year one of Mississippi’s medical cannabis program and to preview what 2023 may have in store as the program finally launches. And what better way to frame this article than follow Charles Dickens’ famous blueprint from A Christmas Carol? Ebenezer Scrooge’s following quote towards the end of the classic novel most certainly had nothing to do with Mississippi’s new cannabis program: “I will live in the Past, the Present, and the Future. The Spirits of all Three shall strive within me. I will not shut out the lessons that they teach.”  But the quote’s message undoubtedly applies.

Ghost of medical cannabis past

2022 quickly greeted Mississippi with something many living in this state never thought was possible – legalization of (medical) marijuana.  We wrote many times before about the state’s path to legalization (herehereherehereherehereherehere and here).  Needless to say, while the track wasn’t necessarily a smooth one, the train reached the station.  Choo, Choo!

The application portal opened in June for non-dispensary license applicants and in July for dispensary applicants.  The Mississippi Department of Health (MSDH) began issuing licenses in late June, and the first dispensary received its license from the Mississippi Department of Revenue (MSDOR) in late July.  To say that these state agencies jumped into action and answered the bell is an understatement.  Releasing comprehensive regulations, opening the application portal, processing hundreds of applications, and issuing licenses in a mere four months after the law was signed was an incredible achievement.  This hard work paid off.  As of late September, the state reported having received nearly $6 million in license and application fees.  Three months later, this figure has certainly grown – and no taxes have yet been collected from product sales.

2022 also showed us that the interactions between license holders and the municipality or county in which those licensees seek to operate may not always be amicable.  While it appears most licensees and local governments worked very well together, reports of challenges in this respect certainly circulated.  Nonetheless and despite opt outs, the state issued licenses to cannabis establishments in nearly every corner of Mississippi.

Ghost of medical cannabis present

So, what does the medical cannabis program look like now, in late December 2022?  Well, some predicted that patients would already have been purchasing product by now. However, the latest predictions suggest that this won’t happen until late January or February 2023.  It seems the hold-up is due largely because none of the medical cannabis testing labs that hold licenses are ready to start testing.  But this is not for want of trying and should give Mississippians some comfort.  The process through which these labs must go to receive ultimate approval to test is very complex and laborious, particularly to obtain the necessary test method verifications.

The delay of the testing labs does have a silver lining.  More time for qualified patients to follow the law and regulations and obtain a patient card is needed.  The latest reports show the total number of qualified patients currently holding patient cards is below 2,000. By comparison, 2021 figures had Arkansas with a patient count of 76,779, Connecticut with 54,000, Missouri with 136,000, and Oklahoma with 368,218.  Yes, those states’ medical marijuana programs were much more mature in 2021 than Mississippi’s currently. But,  to say that patient numbers must increase for Mississippi’s program to thrive–economically speaking– is an understatement.

Once patient numbers do increase there should be no shortage of product or places to purchase it.  To date, licenses are held by 66 cultivators (including micro-cultivators), ten processors, six transportation entities, four disposal entities, three testing labs, and 157 dispensaries.  By all accounts, Metrc, the seed-to-sale tracking system Mississippi elected to use, is operable and running in good form.  So, when the products are tested, pass those tests, and reach the shelves of dispensaries, sales should once and for all commence.

Ghost of medical cannabis future

With an eye towards the future of the program, the MSDH released the week before Christmas proposed changes to its regulations governing medical cannabis businesses and patient/ID cards. We summarized those proposals here.  Will the department approve the proposed revisions to batch sample sizes for testing?  Will the new definition of “cannabis waste” be adopted?  Will licensees now be able to request permission to not follow all regulations through the proposed “variance” procedures?  And will the proposed administrative hearing be in place as a necessary step for aggrieved businesses before pursuing court action?  The future will determine whether these and the other proposed changes will come to fruition.

Initially, 2023 should greet Mississippians with dispensaries opening their doors and selling product to qualified patients in January or February.  The start of 2023 also does away with the residency requirement for non-micro processors and cultivators that originally required that at least 35% of the equity ownership interests of these entities be held by Mississippi residents.  Does that mean Mississippi will be flooded with out-of-state multi-state operator groups?  Or will the high license and low patient counts help retain the status quo?  Will Mississippi issue any sort of moratorium on licenses?

We do know that the MSDH and MDOR will be providing the executive and legislative branches in Mississippi with an annual report pursuant to the Mississippi Medical Cannabis Act.  We also know that the MMCA requires that the Medical Cannabis Advisory Committee meet with and make recommendations to the legislature, MSDH, and MDOR about its assessment of the medical cannabis program.  Those recommendations might involve patient access issues, testing facility effectiveness, compliance safeguards, and potential additions or revisions to the rules and regulations, such as “relating to security, safe handling, labeling, nomenclature, and whether additional types of licenses should be made available.”

I haven’t even mentioned the possible federal reform that might impact the cannabis industry.  And I won’t go there in this space, because we have written extensively on this before (hereherehereherehere and here). Change is most certainly expected, in some form or fashion.  The extent of that change, however, is not yet fully known.

Another literary genius, who happens to hail from the Magnolia State and who lived most of his life in the only US county, fictionally known as Yoknapatawpha, where federally legal marijuana was grown for decades, famously spoke about the past’s impact on the present and future: “The past is never dead. It’s not even past.”   William Faulkner, like Dickens, was not speaking about a legal cannabis program in his native state when he wrote those words in Requiem for a Nun.  But they are a revealing lens through which to assess the program.  We aren’t fortune tellers and we don’t have a crystal ball, but I am confident that 2023 will be fascinating in the world of medical cannabis down here in Mississippi.

Top 200 Cannabis Lawyers

Cannabis Law Journal – Contributing Authors

Editor – Sean Hocking

Author Bios

Canada
Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Nicaragua
Elvin Rodríguez Fabilena

USA

General
Julie Godard
Carl L Rowley -Thompson Coburn LLP

Arizona
Jerry Chesler – Chesler Consulting

California
Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Colorado
Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Florida
Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

Illinois
William Bogot – Fox Rothschild

Massachusetts
Valerio Romano, Attorney – VGR Law Firm, PC

Nevada
Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Oregon
Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Pennsylvania
Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild