JACKSON • Legislation that would create a new medical marijuana program in Mississippi if the voter-approved Initiative 65 is overturned in court cleared the state Senate on the second try last week early on Friday morning.
Senate Bill 2765, the Mississippi Medical Cannabis Act, failed by a single vote Thursday evening. But six hours later, after 1 a.m. Friday — and facing a looming legislative deadline — senators returned and narrowly passed the sweeping piece of legislation. It now heads to the House for consideration.
Voters in November overwhelmingly approved Initiative 65, which amended the state constitution to include language creating a medical marijuana program. State health officials are in the early stages of setting up that program, which allows marijuana use for patients with an array of medical conditions.
But Initiative 65 is also facing a court challenge, brought by Madison Mayor Mary Hawkins Butler. The pending case before the Mississippi State Supreme Court argues the process for placing a constitutional amendment before voters in Mississippi is improper, and that Initiative 65 should be invalidated.
The author of the bill, Sen. Kevin Blackwell, R-Southaven, repeated numerous times to his colleagues Thursday night and Friday morning that his legislation was not intended to replace or undermine the voter-approved initiative. Instead, he said the bill has a "trigger" where it will only go into effect should the constitutional amendment be overturned.
“Over 74% of the people in this state voted for a medical marijuana program,” Blackwell said. “There is some jeopardy with initiative 65. It is before the courts. It may be upheld, or it may be thrown down.”
That’s why, Blackwell said, such “placeholder” legislation should be approved. Voting against the bill, he argued, would mean “you’re basically saying you don’t care what 74% of the people in this state said.”
How does the Senate bill differ from Initiative 65?
Like Initiative 65, Blackwell said, SB 2765 would allow only 2.5 ounces of marijuana to be dispensed over a two-week period. It would include the same list of qualifying conditions, plus a few more, for patients to receive treatment. And just like the constitutional amendment, there would be no limits on cultivation centers or the number of dispensaries allowed in the state.
There are key differences, however, in how the programs' tax and fee structure would work, Blackwell noted. And while Initiative 65 would be largely run by the Mississippi State Department of Health, the legislative version tasks the Mississippi Department of Agriculture with much of the oversight.
If implemented, Initiative 65 is set to charge a sales tax of up to 7%, charge up to $50 to obtain a marijuana ID card, as well as charge "reasonable fees" for dispensaries to obtain a license. Revenue from the program must be used to fund the state's medical marijuana regulatory program.
SB 2765, meanwhile, initially proposed $100,000 licensing fees to start a cultivation and processing facility, with an annual renewal of the same price. Dispensaries would be charged $20,000 upfront for a license, with an annual renewal costing half that. Under the bill’s original language, dispensaries would charge customers a retail tax of 10%.
But Blackwell advanced several major changes Thursday night to appease concerns from other senators and ensure the bill passed. Those tweaks included drastically reducing the licensing fees.
For dispensaries, the updated language said initial licensing fees would cost $5,000, with $2,500 each year following. A cultivator would pay $15,000 upfront, and $8,000 each following year. And the sales tax, he said, would be reduced — from 10% to 7%.
Proceeds of SB 2765, instead of being self-contained in the program, would go to various state education priorities, including early learning and college scholarships.
Negotiations over marijuana bill delayed all other Senate business
Blackwell alluded to the fluid nature of the bill, suggesting he had made a number of concessions. Indeed, Blackwell and Lt. Gov. Delbert Hosemann had been cajoling senators to vote for the bill nearly all of Thursday, often behind closed doors. The deal-making on the medical marijuana bill caused nearly all other legislative action to halt, leading to a late night in the Senate.
"It's been a work in progress, up until just a few hours ago," Blackwell said before the bill initially failed.
But a mix of Republicans and Democrats ultimately opposed the bill. Some were worried about voting for anything related to marijuana, while others had concerns about a public perception that they were undermining the voter's will with Initiative 65. Some expressed concerns about large licensing fees serving as a barrier to small Mississippi companies wanting to get into the marijuana business.
Blackwell and others argued Mississippi voters didn't know the specifics of what they were voting on when they approved Initiative 65, so they would likely be OK with the replacement program, if needed.
But senators opposing the bill worried the effort would suggest to Mississippians that the Legislature was trying to circumvent the will of the people. And several pointed out that the whole reason Initiative 65 happened at all was because the Legislature had failed to approve a marijuana program in recent years, despite clear public support.
Bill would only take effect if courts throw out Initiative 65
Lawmakers sought to undermine Initiative 65 with their own alternative ballot question last year.
"You’ve been saying that 74% of the people voted for medical marijuana — you’ve said it probably 15 to 20 times today,” Sen. Sampson Jackson, D-Preston, told Blackwell. “Did they vote for this bill, or did they vote for initiative 65?”
Sen. Barbara Blackmon, D-Canton, said the Legislature should continue to support Initiative 65 because that’s what voters supported.
“I believe that those people who elected me, I believe they are intelligent, I believe they have an understanding (of what they voted on),” Blackmon said. “I believe they know what they are doing.”
Earlier in the legislative session, Blackwell had pitched Senate Bill 2765 as a parallel marijuana program that would operate whether Initiative 65 is overturned by the court or not. But that idea appeared to shift following lengthy discussions and negotiations on Thursday, and eventually the "trigger" language was included.
The same number of senators voted for the bill Thursday evening and early Friday. The only difference was that two fewer senators showed up to vote against the bill on the second try, allowing the legislation to squeak through.
Northeast delegation largely backed the bill
A majority of senators from Northeast Mississippi supported the bill. They included Rita Potts Parks, Daniel Sparks, Hob Bryan, Ben Suber, Nicole Boyd, Neil Whaley and Bart Williams.
Local senators opposed to the legislation were Chad McMahan, Angela Turner-Ford and Kathy Chism.
McMahan told the Daily Journal an outpouring of opposition to the bill from his district convinced him to vote no.
"The vast majority of the people who took time to call me, or email me, or text me asked me to respect the people's vote on 65 and not take any action, so that's what I did," McMahan said.
He said Blackwell's amendments improved the bill significantly, including provisions to decrease hefty licensing fees for growers and dispensaries. But McMahan said that didn't change the fact that voters opted to legalize marijuana by amending the constitution, and the legislative proposal does not do that.
"If the courts overturn it or strike (Initiative 65 down), whatever the reason is, the governor could convene the Legislature for a special session, and we could come up with a bill and pass it," McMahan said, noting there doesn't need to be any rush now.
But Bryan, a longtime Democratic lawmaker from Amory, opted to support the legislation. He said the Legislature should have approved medical marijuana before voters were forced to take matters into their own hands and amend the constitution. Now that they have, however, he said he did not have a problem with the legislative proposal as a way to ensure Mississippians access to medical pot.
"Apparently this is important to the leadership, and I'm happy to support the leadership on this issue," Bryan said of the bill.
The bill garnered online opposition in recent days.
A group called Mississippians For Medical Marijuana launched a Facebook page and labeled the legislation a "sneaky backdoor proposal." A Wednesday Facebook post from the group said: "Stop Corrupt Politicians. Vote No on SB 2765."
The organization also cut an ad criticizing Blackwell for stating in a recent committee meeting that not all Mississippians "knew what they were voting for." A few members of the group came to the Capitol early Thursday to protest the bill.