JACKSON • The wide-open nature of Medical Marijuana Campaign 2020’s model for a Mississippi medical marijuana sector gets a wrap-around hug from cannabis advocacy organizations and business groups.
“We like so far what we see out of Mississippi,” said Erik Altieri, executive director of the National Organization for the Reform of Marijuana Laws, or NORML.
That affection comes from staying clear of the cartel-like systems adopted in states such as Florida. NORML and groups like the National Cannabis Industry Association say the initiative’s emphasis on affordable licensing and otherwise easy entry by patients and businesses create a promising foundation on which to build a successful sector.
Florida and some other states mandate a vertical integration system by which dispensary companies must compete for a limited number of licenses and develop, grow, transport and sell the product.
Shunning that sort of set up is a smart move for Medical Marijuana Campaign 2020’s effort to make the Magnolia State the 34th state to enact medical marijuana, Altieri said.
“They seem to be trying to make marijuana accessible to those who need it,” he said.
Central to the effort is what is missing from it – caps on licenses. Equally central is a pledge to keep license fees affordable.
“This allows for a free market approach,” said Jamie Grantham, executive director of the group heading the ballot effort, Mississippians for Compassionate Care.
“We looked at what is working well” in other medical marijuana states, she said in an interview.
“Free market” has shown a lot of promise in Oklahoma since voters approved medical cannabis in June 2018. By last October, the state of 4 million people had 200,000 patients authorized by their physicians to have medical cannabis, a participation rate that puts it near the top among the 33 states that have some form of medical cannabis legislation in place.
NORML’s Altieri called Oklahoma “a good success story on the access front” and credited its “very open” uncapped licensing process.
Likewise, Morgan Fox at the National Cannabis Industry Association credits the popularity of Oklahoma’s medial cannabis program to an ease-of-market-entry that gets dispensaries closer to patients.
“We’re against barriers to the industry,” said Fox, spokesman for the cannabis industry group, in an interview.
Barriers typically are income tests and capital thresholds and the like, Fox said. In Oklahoma, $2,500 gets a cannabis dispensary license. “Oklahoma and its $2,500 fee are a good place to look” for market accessibility, he noted.
Limited licensing typically means those “with the most money have the best chances of getting the licenses,” Fox said.
In October, a broker in Atlanta put two Florida medical marijuana licenses on sale for a combined $95 million, with one for $40 million and the other for $55 million.
The goal, Fox said, should be creating “a robust cannabis base without lawmakers getting in the way between the patients and their doctor.”
Mississippi Department of Health officials and members of the governing board would decide how much decision making is left to doctors and patients. And the deciders are not likely to be enthusiastic about treating patients with marijuana, having approved a resolution opposing Campaign 2020 that cites public health and safety concerns.
If voters approve Initiative No. 65 – the result of a petition drive that gained more than 200,000 signatures – the Department of Health and its board will be working from a seven-page document authorizing Mississippi doctors to treat patients with debilitating conditions.
These are illnesses such as “cancer, epilepsy or other seizures, Parkinson’s disease, Huntington’s disease, muscular dystrophy, multiple sclerosis, cachexia, post-traumatic stress disorder, for human immunodeficiency virus, acquired immune deficiency syndrome, chronic or debilitating pain, amyotrophic lateral sclerosis, glaucoma, agitation of dementias, Crohn’s disease, ulcerative colitis, sickle-cell anemia, autism with aggressive or self-injurious behaviors, pain refractory to appropriate opioid management, spinal cord disease or severe injury, intractable nausea or severe muscle spasticity.
A key part of the measure, said Campaign 2020’s Grantham, is a provision allowing doctors to authorize cannabis for conditions of a “similar kind or class” to the nearly two dozen designated in the initiative.
The Department of Health and its board will nonetheless have huge sway on what medical marijuana looks like in Mississippi, said business lawyer Whitt Steineker, co-chair of the Cannabis Industry team at Bradley Arant Boult Cummings LLP in Birmingham.
“What Mississippi is going to do is leave a lot of discretion to the Department of Health,” Steineker said in an interview.
Expect Mississippi officials, he said, to block and divert wherever they can, including the likelihood legislators will introduce a more restrictive ballot measure of their own.
“No doubt about it that the opposition from many in power in state government in Mississippi presents a challenge to implementing this, if it passes,” Steineker said.
Even with passage, expect everyone from local zoning boards to state law enforcement “to drag their feet” on Initiative No. 65, he predicted.
But he doesn’t expect the local and state authorities to actually fully block a new law. “They will get nitpicky on technicities,” he said.
Should they refuse to apply the law, “I don’t think the courts would take to that very well,” Steineker added.
However, if the Nov. 3 voting outcome is similar to the 70 percent or more of state voters who favor medical marijuana, state officials may be less prone to setting up barriers to legal cannabis treatments, Steineker predicted.
State and local officials also would have the measure itself to deal with. It specifies that local municipalities “shall not impair the availability of and reasonable access to medical marijuana.” The proposal further mandates that state officials begin providing licenses for retailers no later than August 15, 2021.
Nothing in the proposed amendment alters rules on drugs in the workplace, according to Steineker. “If you have a drug-free workplace you can continue that,” he said.
Further, Mississippi businesses won’t have to worry about costs of their company-provided health insurance going up to cover workers who are cannabis patients. As long as marijuana is a Schedule 1 drug banned under the 1970 Controlled Substance Act, insurers won’t cover it.
With the United States having nearly 40 states with either adult-use legal marijuana or medical marijuana, lawyers like Steineker are spending ever larger parts of their workdays advising businesses on cannabis commerce. It’s unsettled terrain for banks, real estate firms, equipment companies and others wanting to venture into the emerging sector, he noted.
“I try not to go around telling people to go get a lawyer,” Steineker said, but added: “This is one you really want to take counsel on. Get a good adviser with legal experience.”
Count U.S. pharmacy owners and operators among business people who want into the sector. But their attorneys advise against entering the sector as long as federal prohibitions remain.
“Pharmacists are uniquely qualified to help patients safely adhere to their prescribed marijuana regimen,” the American Community Pharmacists Association said in a recent one-page advisory to members.
Still, under federal law, no individuals, including pharmacists, can legally dispense medical marijuana, even in those states that have passed medical marijuana legislation, said the American Community Pharmacists Association, or ACPA.
First, pharmacy businesses likely will find it difficult to find banks willing to buck federal restrictions, the ACPA said.
Further, contracts with wholesalers, third-party payers, and other business entities often have clauses prohibiting the contracting pharmacy from violating federal laws, the ACPA noted.
“The decision to offer medical marijuana services can lead to unintended consequences for pharmacists and their businesses,” the Association warned.
Pharmacy advocates, it said, should aim for state legislation that “preserves the ability of pharmacists legally to dispense medical marijuana should federal prohibitions be overturned, but which does not place the pharmacist or pharmacy in a position of legal or contractual jeopardy in the meantime.”
Supporters estimate Mississippi would initially have about 14,000 cannabis patients. It’s difficult to tell what sort of economic effect that sort of patient count would have.
“There is always an economic impact,” said Darrin Webb, state economist, in an email. “Quantifying that potential impact is the challenge. With medical marijuana, we would face a great many unknowns including possible negative impacts.”
One provision likely to have at least some economic impact: All of the product sold to Mississippi cannabis patients must be grown, produced and sold in the state, said Grantham, the Medical Marijuana Campaign 2020 head.
“This would certainly open up a new industry,” she said.