Mississippi is the latest state to legalize and approve access to medical marijuana.
The measure, called Initiative 65[i], was approved overwhelmingly by voters on November 3, 2020.
A number of bills to authorize medical (and even recreational) marijuana have been proposed during the last few Mississippi state legislative sessions, but none have garnered much support within the legislature. So, with the prospect of medical marijuana legislation looking grim, the campaign Medical Marijuana 2020 sought to have Mississippi voters decide the issue directly.[ii] The campaign gathered thousands of signatures from across the state, which placed Initiative 65 on the November 2020 election ballot as an amendment to the Mississippi Constitution. Now that it has passed, medical marijuana should be available in Mississippi as early as summer 2021.
Under the amendment, physicians are permitted to issue certifications to patients with the following medical conditions:
cancer, epilepsy or other seizures, Parkinson’s disease, Huntington’s disease, muscular dystrophy, multiple sclerosis, cachexia, post-traumatic stress disorder, positive status 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, severe muscle spasticity, or another medical condition of the same kind or class to those herein enumerated and for which a physician believes the benefits of using medical marijuana would reasonably outweigh potential health risks.
The physician certification allows the patient to obtain a medical marijuana ID card and thereby receive medical marijuana. An ID card cannot expire more than 12 months from the time it’s issued, but it can be renewed by additional physician certifications. A physician can issue a certification to a minor with consent from the minor’s parent or guardian. The ID card authorizes the patient to purchase and possess up to 2.5 ounces of marijuana at a time.
Mississippi’s medical marijuana program will be regulated by the Mississippi State Department of Health (MSDH). MSDH is governed by an 11-member Board of Health appointed for staggered terms by the Governor of Mississippi.[iii] In addition to issuing ID cards to patients, MSDH will be responsible for licensing growers and dispensers of medical marijuana, as well as caregivers who assist patients in obtaining and using medical marijuana. MSDH will have broad discretion over licensing fees and other qualifications, but MSDH is prohibited from limiting the number of licensed growers and dispensaries.
The amendment prohibits MSDH from regulating the price of medical marijuana and prohibits the state from charging sales tax on medical marijuana. However, MSDH will be allowed to assess up to the current sales tax rate on medical marijuana in order to fund its regulating activities. MSDH also has discretion to charge licensing fees for growers and dispensaries. MDSH may charge a fee of up to $50 for issuing a patient ID card.
MSDH must adopt medical marijuana regulations by July 1, 2021. The department must also begin issuing medical marijuana ID cards to patients, and licenses to medical marijuana businesses, by August 15, 2021. MSDH’s regulations will cover a wide range of activities, including product labeling, advertising, testing, and reciprocity for out-of-state patients. Under Mississippi law, MSDH must give the public an opportunity to review and comment on any proposed regulations before they are adopted.
MSDH and dispensaries will be required to keep patient information confidential. All patient records will be exempt from public records disclosure laws.
The amendment does not require any establishment or employer to accommodate or tolerate the use of marijuana on-site or on the job. It also does not require any health insurance company or government agency to reimburse patients for medical marijuana expenses. And it does not permit anyone to drive under the influence of marijuana.
Medical marijuana Initiative 65 was highly supported by Mississippians. But, going into November 3rd, there was considerable uncertainty over whether the measure would be successful. Many members of Mississippi’s legislature opposed bringing medical marijuana to Mississippi, at least in the manner contemplated in Initiative 65. In fact, after Initiative 65 qualified for the ballot, the legislature put a competing medical marijuana measure, called Initiative 65A, on the ballot in what some believed to be an attempt to split (and defeat) the medical marijuana vote.[iv] Ultimately, however, and perhaps because Initiative 65A was vague and devoid of program details compared to Initiative 65, few Mississippians voted for the competing alternative ballot measure.
Although medical marijuana is now the law of the land in the Magnolia State, there are several challenges that lie ahead as Mississippi’s medical marijuana program rolls out. The first challenge is that the ballot measure is under expedited review by the Mississippi Supreme Court. Shortly before the election, the mayor of Madison, Mississippi, filed a petition for review, questioning the validity of the ballot measure, and the supporting signatures it received, based on a technical discrepancy in the ballot certification procedure. The ruling is expected shortly after the new year.[v]
The court’s review notwithstanding, MSDH faces deadlines for finalizing regulations (July 1, 2021) and issuing medical cards and business licenses (August 15, 2021), requiring the agency to diligently work toward developing a thorough medical marijuana regulatory regime by mid-2021. This will likely involve a steep learning curve for MSDH, since the department will need to understand and address issues outside of its current areas of responsibilities, such as agriculture. MSDH will probably turn to other states with existing medical marijuana programs for guidance, particularly Oklahoma, whose law on medical marijuana bears many resemblances to Mississippi’s law.[vi] Initiative 65 also allows MSDH to establish an advisory committee to assist the department with its regulatory activities, which the department can use to tap more out-of-state experience.
Another challenge may be lack of resources for MSDH to efficiently develop and administer the program. Initiative 65 provides MSDH with a maximum $2.5MM line of credit to fund the department’s work on medical marijuana regulations and related activities. However, MSDH has estimated that its costs to implement the program could be much higher, as must as $10MM.[vii] So, depending on the department’s working cash needs for Initiative 65, MSDH may need to ask the Mississippi legislature for additional funds in 2021. And to compound potential funding problems, there are concerns over whether MSDH has enough staff for the added responsibility that comes with administering the medical marijuana program under Initiative 65. If MSDH is spread too thin in its responsibilities and resources, then the medical marijuana program, in addition to other MSDH operations, could suffer adverse consequences.
Despite the challenges ahead, investors and operators, both inside and outside of Mississippi, are no doubt excited to begin participating in Mississippi’s fledging medical marijuana industry and eager to better understand its regulatory framework, particularly the regulations that will affect access to capital and talent. Initiative 65 leaves much of this to the discretion of MSDH. For example, there are no residency requirements written into Initiative 65 that would prevent out-of-state individuals from owning or operating medical marijuana businesses in Mississippi. However, the initiative requires that MSDH’s regulations include qualifications and limitations on officers, owners, operators, employees, contractors, and agents of medical marijuana businesses. It remains to be seen what residency restrictions, or other sorts of qualifications, MSDH will impose on medical marijuana business owners and operators.
More legal details surrounding access to medical marijuana in Mississippi will come to light as MSDH begins to understand and undertake its responsibilities under Initiative 65. Particularly, MSDH’s initial proposed regulations, which should be published no later than the spring of 2021, will give better insight into the department’s stance on issues relevant to patients, physicians and business stakeholders. Although there are many unknowns at the point, there is little doubt that access to medical marijuana in Mississippi, now indelibly written into its constitution, is coming next year.