The Nebraska Medical Cannabis Commission last week approved emergency regulations to begin accepting medical cannabis applications as soon as Gov. Jim Pillen (R) allows the agency to proceed, the Nebraska Examiner reports. Under the state’s voter-approved medical cannabis law, the commission must start accepting applications by July 1.

The regulations largely mirror a legislative proposal that failed in the legislature last month and would remain in effect for 90 days after being approved by the governor.

Under the medical cannabis law, medical cannabis licensing must begin by October 1, and the emergency regulations would allow for the licensing of cultivators, product manufacturers, dispensaries, and transporters, with individuals or organizations only permitted one type of license.

Under the emergency regulations, only one dispensary would be allowed in each of the state’s 12 District Court Judicial Districts; no dispensary could be located within 1,000 feet of any school, daycare, church or hospital; at least 51% of an applicant’s business or organization must have resided in Nebraska and be a U.S. citizen for at least the past four years; and applicants would have to pay to submit two legible sets of fingerprints to the FBI and the Nebraska State Patrol for a criminal background check.

The regulations do not specify qualifying conditions for medical cannabis access but require that a physician’s recommendation specifies the product being recommended, the recommended dosage and potency, the number of doses, the directions for use, and the name of the patient.

The regulations allow dispensaries to sell oral tablets, capsules, or tinctures; non-sugarcoated gelatinous cubes, gelatinous rectangular cuboids, or lozenges in a cube or rectangular cuboid shape; topical preparations; suppositories; transdermal patches; and liquids or oils for administration using a nebulizer or inhaler. Flower is not permitted under the regulations, neither are infused food or drinks, any products containing artificial or natural flavoring or coloring, or any products that can be smoked or vaped.

The governor of Kentucky says that he expects to see medical marijuana growers “putting seed in the ground really soon,” projecting that patients will have access to cannabis before the year’s end.

Speaking with reporters after his “Team Kentucky” update, Gov. Andy Beshear (D) was asked whether medical marijuana patients will have to wait until 2026 before dispensaries open and products are available.

“I hope not,” the governor said. “On medical marijuana, we’re getting really close—this fall and this winter, I think we are very close to doing our site visits to both growers and potentially even the first processor.”

“My sense is that it’s probably the processors—with the amount of equipment and the size of the investment there—that are going to drive that,” he said. “But the first set of growers are going to be putting seed in the ground really soon.”

Beshear added that he acknowledges “it’s taken longer than we would have liked” to stand up the industry since he signed medical marijuana legalization into law in 2023.

“But the law kind of set that up with how it had to be implemented,” he said.

The governor noted that, in recognition of the delayed implementation, he recently signed an executive order to waive renewal fees for patients who get their cards this year so that they don’t get charged again before retailers open. And another order he signed providing protections for qualified patients who obtain medical marijuana outside of Kentucky “will stay in place.”

“We’re making sure that that doesn’t hold us back from getting the other parts open, because we’re opening all these different parts at the same time,” he said. “So almost all of our dispensaries [that received licenses] now have their final counties. I think we will have all of them with the final counties here in about a month.”

Beshear separately announced this month that the state has launched a new online directory that lets people see where medical cannabis dispensaries will be opening near them.

He emphasized that the state has been working to deliver access to patients “at the earliest possible date,” and that involved expediting the licensing process. The governor in January also ceremonially awarded the commonwealth’s first medical marijuana cards.

—
Marijuana Moment is tracking hundreds of cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
—

Meanwhile, the governor sent a letter to Kentucky’s congressional delegation in January, “urging them to take decisive action to protect the constitutional rights of our law abiding medical cannabis patients” by repealing the federal ban on gun possession by people who use marijuana.

That came after bipartisan Kentucky senators filed legislation that similarly called on the state’s federal representatives to take corrective action, which Beshear said he supports but would like to see even more sweeping change on the federal level.

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) warned Kentucky residents late last year that, if they choose to participate in the state’s medical marijuana program, they will be prohibited from buying or possessing firearms under federal law.

As far as the implementation of the state’s medical cannabis law goes, Beshear said in his State of the Commonwealth address in January that patients will have access to cannabis sometime “this year.” He also later shared tips for patients to find a doctor and get registered to participate in the cannabis program.

Health practitioners have been able to start assessing patients for recommendations since the beginning of December.

While there currently aren’t any up-and-running dispensaries available to patients, Beshear has further affirmed that an executive order he signed in 2023 will stay in effect in the interim, protecting patients who possess medical cannabis purchased at out-of-state licensed retailers.

During last year’s November election, Kentucky also saw more than 100 cities and counties approve local ordinances to allow medical cannabis businesses in their jurisdictions. The governor said the election results demonstrate that “the jury is no longer out” on the issue that is clearly supported by voters across partisan and geographical lines.

New Chicago Police Policy Discourages Searches Based On Marijuana Odor

Photo courtesy of Mike Latimer.

“The odds are always against the Supreme Court hearing any particular case, but the cannabis industry’s approach in this one absolutely ensures it won’t happen.”

By James B. Mann, former U.S. Department of Justice Tax Division deputy assistant attorney general

A much-hyped lawsuit meant to challenge federal cannabis law has officially flamed out. The First Circuit Court of Appeals recently issued a unanimous opinion rejecting Canna Provisions v. Garland (also known as Canna Provisions v. Bondi), a case widely seen as the cannabis industry’s best shot at attacking federal prohibition through the courts.

The case was intended to strike down cannabis’s Schedule I classification under the Controlled Substances Act and eliminate the crushing tax burden imposed by Section 280E of the Internal Revenue Code. Instead, it ended in a resounding defeat—with precisely zero chance of being heard by the Supreme Court.

Section 280E is one of the most punishing burdens facing the legal cannabis industry. Originally enacted in the 1980s to prevent drug traffickers from deducting business expenses, 280E blocks cannabis operators—even fully legal ones under state law—from writing off ordinary costs like rent, payroll or equipment. The result is that cannabis businesses often pay two to three times more in federal income tax than they would if they sold any other legal product.

The cannabis industry’s battle against 280E is now being waged across all three branches of government. Congress is being lobbied for legislative relief. The executive branch is being pressured to reschedule cannabis so 280E no longer applies. And the judiciary has been pulled in through legal challenges like Canna Provisions.

The lawsuit was filed with much fanfare in October 2023—it was funded by many of the large cannabis companies and used a big-name law firm, Boies Schiller. The goal was to overturn a 2005 Supreme Court decision, Gonzales v. Raich. In Raich, the Court upheld the Controlled Substances Act as applied to cannabis grown solely for personal medical use within one state.

Boies Schiller essentially made two arguments—first, that the realities of the cannabis market had changed so much since 2005 that Raich was outdated and wrong, and second, that Congress had passed legislation proving cannabis no longer belongs in Schedule I. The First Circuit wasn’t having any of it. The 3-0 opinion pointed out that even though the facts had changed, they had not changed enough to make Congress’s classification irrational as part of a comprehensive regime of drug regulation (the relevant test).

The court also dismissed the claim that federal legislation proved cannabis should be removed from Schedule I. The opinion noted that the funding restrictions were limited in their effect and applied only to medical cannabis (Canna Provisions and the other plaintiffs are adult-use sellers).

Interestingly, the opinion repeatedly criticizes the lack of logical development of Canna Provisions’s arguments, going so far as to dismiss one of the most important arguments for “lack of development.”

Supreme Court justices vote on what cases to hear, and it takes four votes to put a matter on the docket. In a lawsuit like Canna Provisions, there is no split among the circuit courts for the Supreme Court to resolve. That means the only real path to a hearing was to convince the justices that the case presented an urgent federal legal question.

There is one justice still on the bench from Raich—Justice Clarence Thomas. His dissent in that case, and his opinions in other Commerce Clause cases, emphasize his belief that federal power has stretched far beyond the Framers’ intent. Justice Sandra Day O’Connor’s dissent also argued that the federal law intruded on core state powers.

Bizarrely, Boies Schiller never raised the arguments made by either Thomas or O’Connor. It’s unclear who they thought would vote to hear the case based on the strategy they pursued.

And while oral argument isn’t usually a decisive factor in appellate decisions, it didn’t help that David Boies was completely shredded by the three-judge panel. (The First Circuit has publicly available recordings of oral arguments.) Boies was once one of the most prominent litigators of his generation—there’s even a chapter in a Malcolm Gladwell book about his mind and how he overcame dyslexia. But at 84, he was unprepared for basic questions and clearly no longer at his peak.

The odds are always against the Supreme Court hearing any particular case, but the cannabis industry’s approach in this one absolutely ensures it won’t happen. More broadly, Canna Provisions underscores the complexity of using litigation to advance federal cannabis reform. While carefully crafted legal challenges may still have a role, this case failed to present the type of arguments or posture that could realistically have drawn the Supreme Court’s interest.

James B. Mann is a tax attorney whose practice centers on cannabis taxation and complex business tax planning. A Harvard Law and Columbia MBA graduate, he previously served as deputy assistant attorney general in the U.S. Department of Justice’s Tax Division, led tax-debt advisory at Société Générale, and represented major cannabis clients—including arguing the Harborside case in the Ninth Circuit.

Matt Gaetz Pictured Reviewing Contract To Provide Top Marijuana Company With ‘Administration-Related’ Support Amid Rescheduling Push

Photo elements courtesy of rawpixel and Philip Steffan.