While Mississippi voters overwhelmingly endorsed a specific medical marijuana legalization plan in November, the state might ultimately create a program that looks drastically different.
That’s because the Mississippi Supreme Court could invalidate Initiative 65 in the coming months. The possibility has led the Legislature to push a replacement pot program that deviates significantly from the constitutional amendment voters wanted.
Marijuana experts and industry players told the Daily Journal they have several technical concerns about the legislative proposal, Senate Bill 2765, from excessive licensing fees for growers and dispensaries to limited patient access.
But their central frustration is that the legislation simply does not mirror what was on the ballot, which they argue is the only fair resolution for Mississippians if the initiative is killed in court.
“If the point of the bill is to create something that’s going to be in place of Initiative 65 if it fails, why are we changing so many things up?” asked Jessica Rice, executive director of the Mississippi Cannabis Trade Association, which formed in mid-November.
“We think everything in Mississippi relative to medical marijuana should be Initiative 65, and this is very clearly not what the people voted on last year,” added Ken Newburger, executive director of the Mississippi Medical Marijuana Association, another business organization created in December.
Court case set for April arguments
The state’s medical marijuana morass is largely thanks to a lawsuit filed last year by Madison Mayor Mary Hawkins Butler, slated for oral arguments before the state Supreme Court on April 14.
Butler, who is worried about cities’ ability to regulate marijuana, argues the initiative process outlined in the state constitution is outdated. It says Initiative 65 should not have been placed on the ballot due to how signatures were collected across the state’s five former congressional districts.
Several groups have filed amicus briefs with the court, using the lawsuit as a forum to support or oppose medical marijuana in Mississippi. The Mississippi Sheriff’s Association, for instance, brought up impaired driving and crime issues in supporting Butler, while the Mississippi State Medical Association focused on public health concerns with legalization.
The Mississippi State Department of Health – tasked with operating the program under Initiative 65 – argued to the court that taking on marijuana oversight with the agency’s other duties would be too much of a burden.
“Unless the Judicial Branch intervenes, MSDH will be forced to create a large database and write complex regulations in less than seven months,” attorneys for the department wrote, describing it as a “Herculean feat.”
A trio of lawmakers – including Sen. Kathy Chism, R-New Albany – also backed the Madison mayor’s effort to overturn Initiative 65. They argued the constitution’s language governing ballot initiatives must be fixed by the Legislature before marijuana legalization or other ballot initiatives can move forward.
Marijuana advocates question motivations behind bill
While the court case awaits resolution, the Senate narrowly passed SB 2765 last week following a day of closed-door negotiations. The bill now heads to the House for consideration, where it could see additional tweaks.
The bill’s author, Sen. Kevin Blackwell, R-Southaven, argued the proposal has voters’ interests in mind by setting up a new program immediately if Initiative 65 is overturned. He said voters probably didn’t read the fine print of Initiative 65 anyway, and wouldn’t mind a few changes as long as they can access medical marijuana.
But several industry players don’t buy it. Blackwell’s original bill, they point out, did not include a “trigger” that would enact the legislative proposal only if Initiative 65 is invalidated. Blackwell originally presented the bill as operating in tandem with Initiative 65, with businesses and patients choosing one program or the other.
And Newburger, who worked on the Initiative 65 campaign, argued voters knew the specifics of Initiative 65: They overwhelmingly chose it over an alternative legalization proposal that lawmakers had added to the ballot.
“If the vote had been close, that might’ve been the case,” Newburger said of the idea that voters were OK with any type of legalization. “But it wasn’t.”
“If (lawmakers) truly wanted Mississippians to be heard and have a program – even if Initiative 65 is taken from them by the Supreme Court – then they would have wrote their bill, word for word, a copy of 65,” said Diesoul Blankenship with Mississippians for Medical Marijuana, an organization that plans to represent patients in the state.
As it stands now, Initiative 65 and the legislative proposal have several major differences. They include:
- Licensing fees – Initiative 65’s language does not set specific licensing fees for marijuana businesses. SB 2765 would charge dispensaries $5,000 upfront, with a $2,500 annual renewal. Growers would pay $15,000, and an $8,000 renewal.
- Taxes – The sales tax for both programs would be set at 7%. The difference is what that revenue could be used for. Under 65, it must be used to fund the marijuana program itself, while under the legislative plan, it would go to several state education priorities such as early learning programs and college scholarships.
- Shopping flexibility – Under Initiative 65, marijuana patients could shop at dispensaries around the state. SB 2765 would require them to use a “designated dispensary” or pharmacy to get their marijuana.
- Agencies – Initiative 65’s program would be run by the Department of Health and its Board of Health. The legislative version would lean on the Department of Agriculture and Commerce for oversight and management.
Legislation should be ‘carbon copy’ of ballot question
Rice, with the Cannabis Trade Association, said she appreciated senators approving several major changes to Blackwell’s bill – including drastically reducing the licensing fees.
As the legislation was originally written, growers would have been charged $100,000 per year to maintain a license with the state. Dispensaries would have been required to pay $20,000, with an annual renewal of half that amount.
Such high prices, Rice said, would have excluded many small Mississippi businesses.
“You don’t want to price people out,” she said. “Especially in a state like Mississippi, where a lot of us don’t have an extra $250,000 lying around to invest into a new business. But maybe we have $10,000, or $15,000, or $25,000.”
Blankenship said he remains opposed to the current licensing fee levels in the legislation, which he worries are hefty business costs that would be passed on to the customer as higher prices.
Rice and others say they don’t understand why any legislation is needed at this stage. If the Supreme Court invalidates Initiative 65, they point out, lawmakers could always return and pass legislation that mirrors Initiative 65 but is simply not written into the state constitution.
Hannah Shirley, a Gulfport attorney who plans to expand her law practice to cover marijuana issues, worries there could be other motivations behind the legislation.
“This just seems like a green light to the Supreme Court, for them to say, ‘Oh well, we can overturn 65 and lean on this bill,’” Shirley said. She noted that while the Legislature is moving to pass a replacement marijuana program, it has not taken steps this session to resolve the constitutional language regarding congressional districts that is at the center of the Supreme Court case.
Blankenship said he’s hopeful SB 2765 will die in the House. If it doesn’t, he said it should be completely overhauled to become a “carbon copy” of Initiative 65.
Newburger, with the Medical Marijuana Association, refused to speculate about what should happen if the court opts to invalidate the voter initiative.
“I don’t think that the supreme court is going to overturn the election,” he said.
LUKE RAMSETH is a Jackson-based reporter covering the 2021 session of the Mississippi Legislature. Email him at firstname.lastname@example.org and follow him on Twitter at @lramseth.