By Joe Smith, Thompson Hine LLP
member of NCIA’s State Regulations Committee, New States Subcommittee
On February 2, 2022, Mississippi Governor Tate Reeves signed the Mississippi Medical Cannabis Act (SB 2095) into law, making Mississippi the 37th state to authorize the medical use of cannabis. Passage came after the voter-approved ballot measure allowing a medical cannabis program was struck down by the Mississippi State Court. The Mississippi Department of Revenue (MDOR) has 150 days from enactment to begin the process of licensing dispensaries and is working with the Mississippi Department of Health (MDOH) to design the application process. The Alcoholic Beverage Control Enforcement Division of MDOR will be the division accepting the license application and will begin accepting applications no later than July 1, 2022. Thirty days after receiving a completed application, it will have to issue dispensary licenses to qualifying applicants.
Patient Qualification and Limitations
To qualify for the program, patients must have at least one qualifying medical condition and a certification issued by a healthcare practitioner with whom they have a bona fide relationship. A “bona fide practitioner-patient relationship” means the practitioner has a treatment relationship with the patient during which the practitioner has completed an in-person assessment of the patient’s medical history and current mental health and medical condition; has consulted in person with the patient about the patient’s debilitating medical condition; and the practitioner is available to or offers follow-up care and treatment to the patient. The practitioner must be a Mississippi-licensed physician, nurse practitioner, physician assistant, or optometrist. They must believe the patient “would likely have medical or palliative benefit” from medical cannabis to treat their qualifying condition. They also must have completed 8 hours of continuing medical education on medical cannabis and complete five hours every year thereafter.
The qualifying conditions are cancer, Parkinson’s, Huntington’s, muscular dystrophy, glaucoma, spastic quadriplegia, HIV, AIDS, hepatitis, amyotrophic lateral sclerosis (ALS), Crohn’s, ulcerative colitis, sickle cell anemia, Alzheimer’s, agitation of dementia, PTSD, autism, pain refractory to opioid management, diabetic/peripheral neuropathy, spinal cord disease, or severe injury. Patients can also qualify with a chronic medical condition (or its treatment) that produces either cachexia or wasting, severe nausea, seizures, severe and persistent muscle spasms, or chronic pain, narrowly defined as “a pain state in which the cause of the pain cannot be removed or otherwise treated, and which in the generally accepted course of medical practice, no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts by a practitioner.” There also will be a petition process for patients to seek coverage for other unspecified conditions.
The program limits possession and purchases to “Medical Cannabis Equivalency Units” (MCEUs) of 3.5 grams of flower, up to 100 mg of THC in infused products, or 1 gram of concentrate. Patients’ purchases are limited to 6 MCEUs in a week and 24 MCEUs in a month. They may not possess more than 28 MCEUs at one time. Flower is limited to 30% THC, with tinctures, oils, and concentrates not allowed to exceed 60% THC.
Regulation and Business Operations
The MDOH will be the primary regulator and coordinate with the MDOR for licensing and operations. MDOH will create the applicable regulations relating to seed-to-sale tracking, recordkeeping requirements, safe processing stands, transportation, health and safety, and security. It also will be responsible for monitoring and restricting advertising, signage, and displays. All products will contain a “notice of harm” regarding the use of medical cannabis products.
Licensing will be required for dispensaries, cultivation facilities, processing facilities, transportation entities, disposal entities, testing facilities, and research facilities. Cultivators will be tiered based on size, and the law does not include a numerical cap on business licenses. No individual or business may have more than 10% ownership interest in more than one cultivation license, one processing license, and up to four dispensaries. Application fees for cultivators will range from $1,500 to $60,000 depending on the size/tier of the particular cultivator, with annual fees similarly ranging from $2,000 to $100,000. Cannabis will be taxed at wholesale at 5% of the price, in addition to standard sales taxes.
Initially, dispensaries will not be able to provide delivery or curbside pickup for patients. Still, the law does provide that MDOH and MDOR are to implement rules that include “Protocol development for the safe delivery of medical cannabis from dispensaries to cardholders.” Dispensary staff will be required to complete an initial 8 hours of education on medical cannabis and 5 additional hours of continuing education every year. They also must be over 21 and obtain a work permit for $25. They also generally have been previously convicted of a violation crime or been convicted of a felony violation of a state or federal controlled substance law within five years. A disqualifying felony offense does not include a conviction for conduct that would not have been a felony but for the conduct occurring before the effective date of the Mississippi Medical Cannabis Act.
Medical cannabis businesses are not allowed to be located within 1,000 feet of the boundary of a school, church, or childcare facility, and dispensaries must be at least 1,500 feet from another dispensary. While localities can regulate the time, place, and manner of medical cannabis businesses, they can not ban them or “make their operation impracticable” unless they opt-out of the medical marijuana program by a vote of the localities governing body within 90 days of the law’s passage. If a locality opts out, 20% or 1,500 voters (whichever is fewer) can petition to put the question on the ballot, and an election must be held within 60 days.