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Saturday, June 3, 2023

Mississippi Medical Cannabis, Charles Dickens Style | Bradley Arrant Bolt Cummings LLP

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As we turn the calendar into another year, and since we’re running a cannabis law blog, it seems appropriate that we write about the first year of Mississippi’s medical cannabis program and preview what might be in store for 2023 as the program finally launches. And what better way to frame this essay than to follow Charles Dickens’ famous outline Christmas carol? The following quote by Ebenezer Scrooge near the end of the classic novel is certainly unrelated to Mississippi’s new cannabis program: “I will live in the past, the present, and the future. The three spirits within me will labor. I will not dismiss the lessons they teach.” But the quote message undoubtedly applies.

The ghost of medical cannabis past

The year 2022 quickly greeted Mississippi with something many of those living in the state never thought possible — the legalization of (medical) marijuana. We have written many times before by state towards legalization (hereAnd the hereAnd the hereAnd the hereAnd the hereAnd the hereAnd the hereAnd the here And the here). Needless to say, while the path wasn’t necessarily easy, the train made it to 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 these government agencies jumped into action and answered the bell is an understatement. Issuing comprehensive regulations, opening the application portal, processing hundreds of applications, and issuing licenses in just four months after signing the law was a remarkable achievement. This hard work pays off. As of late September, the state reported that it had received nearly $6 million in licensing and application fees. Three months later, that number has definitely gone up — and no taxes have yet been collected from product sales.

2022 also showed us that interactions between license holders and the municipality or county in which licensees seek to operate may not always be friendly. While most licensees and local governments seem to work very well together, reports of challenges have certainly been circulating in this regard. However, despite the withdrawal, the state issued licenses to cannabis establishments in nearly every corner of Mississippi.

The ghost of medical cannabis exists

So, what does the medical cannabis program look like now, in late December 2022? Well, some speculated that patients were going to actually buy the product by now. However, the most recent projections say that this won’t happen until late January or February 2023. The disruption appears to be largely due to none of the medical cannabis testing labs with licenses ready to begin testing. But this is not for the need to try and should give Mississippians some relief. The process that these labs must go through to obtain final test approval is very complex and arduous, particularly to obtain the necessary test method validations.

Delaying testing laboratories has a positive side. More time is needed for eligible patients to follow the law and regulations and obtain a patient card. The latest reports show the total number of eligible patients who currently hold sick cards is less than 2,000. By comparison, the 2021 numbers had Arkansas with 76,779 patients, Connecticut 54,000, Missouri 136,000 and Oklahoma 368,218. Yes, medical marijuana programs in those states were more mature in 2021 than Mississippi is currently. But to say that patient numbers must increase for the Mississippi program to thrive — in economic terms — is an understatement.

Once patient numbers increase, there should be no shortage of products or places to buy them. To date, licenses have been obtained by 66 growers (including small farmers), ten processors, six transport entities, four disposal entities, three testing laboratories, and 157 dispensaries. By all accounts, Metrc, the Mississippi Select Sale Seed Tracking System, is operable and works well. So, when products are tested, pass those tests, and hit the dispensary shelves, sales have to start once and for all.

The medical cannabis ghost of the future

Focusing on the program’s future, MSDH issued in the week before Christmas proposed changes to its regulations governing the medical cannabis business and patient/ID cards. We summarized these proposals here. Will the department agree to proposed revisions to batch sample sizes for testing? Will the new definition of “cannabis waste” be adopted? Will licensees now be able to seek permission not to follow all regulations through the proposed “variance” procedures? Will the proposed administrative hearing be held as a necessary step for aggrieved companies before a lawsuit is filed? The future will determine whether these and other proposed changes will bear fruit.

Initially, 2023 should welcome Mississippians with dispensaries opening their doors and selling the product to eligible patients in January or February. The beginning of 2023 also eliminates residency requirements for micro processors and farmers that originally required Mississippians to hold at least 35% of the equity ownership interests of these entities. Does this mean Mississippi will be flooded with multi-state operator groups from out of state? Or will a higher license and lower patient numbers help maintain the status quo? Will Mississippi issue any kind of discontinued licenses?

We know that MSDH and MDOR will report to the Mississippi Executive and Legislature annually in accordance with the Mississippi Medical Cannabis Act. We also know that the MMCA requires that the Medical Cannabis Advisory Committee meet and make recommendations to the legislature, MSDH, and MDOR about its evaluation of the medical cannabis program. These recommendations may include patient access issues, facility effectiveness testing, compliance safeguards, and potential additions or revisions to rules and regulations, such as “relating to security, safe handling, labeling, and labeling, and whether additional types of authorizations should be provided.”

I didn’t even mention potential federal reform that might affect the cannabis industry. And I will not go there in this place, because we have written a lot about this before (hereAnd the hereAnd the hereAnd the hereAnd the here And the here). Change is definitely expected, in some form or manner. The extent of this change, however, is not yet fully known.

Another literary genius, he came from the Magnolia State and lived most of his life in the only American county, known in fiction as Yoknapatavahawhere federally legal marijuana has been grown for decades, famously spoke of the impact of the past on the present and the future: “The past is never dead. It’s not even the past.” William Faulkner, like Dickens, was not talking about a legal cannabis program in his home state when he wrote these words in the language Requiem for a nun. But it is a lens through which to evaluate the programme. We’re not fortune tellers and we don’t have a crystal ball, but I’m confident that 2023 is going to be a great year in the medical cannabis world here in Mississippi.


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