Update on Medical Marijuana in Mississippi: All Appears a Go (Most Likely)

Over the last month, the Mississippi Department of Health (MSDH) has been working to meet the July 1, 2021, deadline that Initiative 65 imposed on the MSDH to publish its final rules and regulations governing Mississippi’s medical marijuana program. On March 26, 2021, the MSDH virtually held its second public board meeting to discuss the progress of the state’s medical marijuana program. The meeting indicated that the MSDH is on track to issue its final rules and regulations by June 30, 2021, which will be effective July 1, 2021, and to begin issuing licenses by August 15, 2021. During the meeting, the MSDH released this provisional timeline:

The MSDH also previewed an outline of the regulations that would govern independent medical marijuana testing facilities and discussed the pros and cons of growing marijuana indoor versus outdoor, indicating that a decision has not yet been made about whether both methods will be permitted under the new program.

On March 30, 2021, the MSDH published proposed regulations and rules for independent medical marijuana testing facilities. Here are the highlights: 

• The proposed regulations apply to independent medical marijuana testing facilities (IMMTF), as defined by the regulations.
• IMMTFs must be located in Mississippi and certified by the MSDH.
• The proposed regulations set forth information required by IMMTF applicants, which includes a variety of written policies, quality control procedures, proof of certain accreditations, and certification by the MSDH.
• IMMTFs must register with the Mississippi Secretary of State’s office and utilize certain NAICS codes in doing so.
• IMMTF owners/members must comply with criminal history screening requirements.
• The MSDH will conduct onsite inspections of the applicant’s facility before certifying the IMMTF.
• The proposed regulations establish testing programs and reporting requirements.
• The proposed regulations establish chain-of-custody requirements.
• The proposed regulations authorize the MSDH to conduct unannounced inspections of facilities and establish corrective action procedures if an IMMTF is deemed noncompliant.
• The proposed regulations establish detailed requirements related to the transport of medical marijuana.
• Prior to certification, the IMMTF must pay an application fee. The fee amount was not specified in the proposed regulations.

The bottom line is that the proposed regulations mandate that IMMTF applicants have everything required by the regulations and necessary to start the business in place before submitting the application, including several written policies, quality control procedures, accreditations, certifications, and a full staff.

The MSDH is offering the public opportunities to provide comments about the proposed regulations. On May 11, 2021, at 10:30 a.m., an oral proceeding will occur virtually, during which the MSDH will discuss the proposed rules and regulations for independent medical marijuana testing facilities. Additional meeting details can be found here and here. The public can also submit comments regarding the proposed rules and regulations regarding independent testing facilities to MedicalMarijuana@msdh.ms.gov with Lab Public Comment in the subject line of the email.

While the MSDH is working diligently to launch the medical marijuana program in July, a case pending before the Mississippi Supreme Court could potentially derail these efforts. On April 14, 2021, at 10:30 a.m., oral argument will take place in the City of Madison’s challenge to Initiative 65. In Mary Hawkins Butler v. Michael Watson, 2020-IA-01199-SCT, Madison Mayor Mary Hawkins Butler is asking the court to invalidate Initiative 65. According to Butler, the initiative failed to receive the signatures required by the Mississippi Constitution to appear on the ballot. In short, the state constitution requires that a certain percentage of signatures be collected from each congressional district, which Butler argues did not happen. Secretary of State Michael Watson argues that such a rigid result could “destroy all of the state’s initiative enactments over the past nearly 20 years.” Bradley is closely following this appeal and will post an update following the oral argument.

Relatedly, throughout the 2021 Legislative session, the Mississippi Senate has tried to pass measures that would codify the medical marijuana program in the event the Mississippi Supreme Court strikes down Initiative 65. The Senate’s last attempt failed on March 29, 2021, when the Mississippi House of Representatives removed the medical marijuana language from the proposed bill. For this Legislative session, the Mississippi Supreme Court will have the final say.

Absent a ruling by the Mississippi Supreme Court striking down Initiative 65, the MSDH appears poised to launch Mississippi’s medical marijuana program in July and begin issuing licenses by August 15, 2021. And the preview we have on the MSDH’s rules and regulations shows, if nothing else, that applicants will need to be ready to hit the ground running when they submit applications in August.