“Let me be clear: This blatant disregard of their duty and the law will not be tolerated.”
By Zach Wendling, Nebraska Examiner
Nebraska Gov. Jim Pillen (R) has officially approved emergency rules and regulations for a regulatory commission to begin licensing medical cannabis establishments no later than October 1.
The regulations had to go into effect Tuesday, based on deadlines overwhelmingly imposed by voters last November when Nebraskans legalized medical cannabis up to 5 ounces with any health care practitioner’s recommendation. Voters also approved a new Nebraska Medical Cannabis Commission to have the “exclusive” power to regulate the new medicine.
After reviewing the emergency regulations, Pillen signed them Sunday. That means the commission narrowly meets its July 1 deadline to impose criteria to accept or deny licensing applications. Licensing must begin by October 1, under state law.
Pillen on Tuesday pointed to a legal agreement the Medical Cannabis Commission also entered into Thursday with the Nebraska Department of Health and Human Services and Pillen’s Policy Research Office, the governor’s lobbying arm. At least some advocates have voiced concern about the involvement of DHHS for broad “legal services,” including general rulemaking.
Pillen’s office said the agencies “will ensure Nebraska’s new cannabis industry is properly regulated as outlined in the ballot initiatives passed by voters and signed by him into law.”
The emergency guidelines go into effect for up to 90 days, through September 28, and can be extended, if needed, for one more 90-day period. However, Pillen and members of the Medical Cannabis Commission plan to move forward with formal regulations by October 1.
The commission is soliciting public feedback on the emergency regulations by July 15 at [email protected].
Dr. Monica Oldenburg, an anesthesiologist who chairs the Medical Cannabis Commission, sent a letter to Pillen relaying the emergency regulations and stating that the “failure” to adopt them by the July 1 deadline “would force Nebraskans to seek medical cannabis or similar products from unregulated and potentially harmful sources.”
Justification for emergency regulations under state law can include “imminent peril” to public health, safety or welfare.
Application requirements
Under the emergency guidelines, anyone could apply for a cultivator, product manufacturer, dispensary or transporter license. An individual or business could be awarded only one license type, which would each also have strict record-keeping requirements.
Licenses could be granted for two years with a chance for renewal and would be non-transferable. Licenses may be denied for “good cause.”
Applicants would need to meet the following criteria for all license types:
- Ownership: At least 51 percent of the ownership of an application must be Nebraska residents and U.S. citizens for at least the past four years.
- Finger printing: At least two sets of fingerprints for anyone included in the application must be sent to the FBI through the Nebraska State Patrol for a national criminal history record information check. A fee must be paid to the State Patrol.
- Location: Licensed establishments could not be within 1,000 feet of any existing school, daycare, church or hospital.
- Prohibited persons: No one who has been convicted of any felony or any controlled substance-related offense within the past 10 years is eligible for the application. No state or local government can apply for the, nor can any health care practitioner who has issued one or more written recommendations for medical cannabis in the past five years. Only adults can apply for a license.
There is no deadline for applications to be submitted, and there is also no clear destination for them to be submitted to.
Dispensary and product restrictions
There could be no more than one dispensary in each of the state’s 12 District Court Judicial Districts, which lawmakers and advocates have said might be too few.
That would mean one dispensary each in Douglas County (584,526 residents), Lancaster County (322,608 residents), Sarpy/Cass Counties (217,202 residents) and Buffalo/Hall Counties (112,979 residents), according to 2020 census data for Nebraska.
Those restrictions would allow no more than five dispensaries to cover more than half of the state’s 93 counties west of Grand Island (Hall County) or Kearney (Buffalo County).
The regulations would 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.
- Gels, oils, creams or other topical preparations
- Suppositories.
- Transdermal patches.
- Liquids or oils for administration using a nebulizer or inhaler.
Dispensaries could not sell raw plant or flower, food or drinks with cannabis infused into it (edibles), any products containing artificial or natural flavoring or coloring and any products administered by smoking, combustion or vaping.
A dispensary could only obtain cannabis products from licensed Nebraska cultivators, transporters or manufacturers.
Packaging would need to be able to show whether it had been tampered with and be child-resistant, resealable and protected from contamination.
Similar to 2024 restrictions on vaping products, cannabis products could not depict cartoon-like fictional characters or mimic characters primarily aimed at entertaining minors, trademarks or trade dress or products that imitate or mimic products primarily marketed to minors, symbols primarily used to market products to minors or the images and likenesses of celebrities.
Until establishments are licensed, medical cannabis products can’t be legally purchased in Nebraska. Many advocates have turned to surrounding states for products as well as health care recommendations, as some Nebraska providers refuse to recommend cannabis. The Nebraska Department of Health and Human Services hasn’t issued any guidance.
The emergency regulations would require that a health care practitioner’s recommendation specify the product being recommended, the recommended dosage and potency, the number of doses, the directions for use and the name of the patient.
State lawmakers rejected multiple efforts in May to shield health care practitioners from civil, criminal or professional penalties solely for recommending medical cannabis.
What comes next?
State Sen. Ben Hansen of Blair, who tried to enact additional legislative guardrails around the commission this spring, with the support of advocates, said the “proof” will be “in the pudding” based on what formal regulations look like, not the emergency regulations.
Hansen has also repeatedly voiced concerns about the Nebraska Attorney General’s Office having threatened to sue the Medical Cannabis Commission as soon as it begins issuing licenses. Hansen questioned how much those lawsuits and others might cost taxpayers.
While Pillen has not outright joined Nebraska Attorney General Mike Hilgers (R) in his legal challenges of marijuana, both have questioned the validity of the medical cannabis laws in part because the federal government designates marijuana as a Schedule I controlled substance.
Thirty-nine other states allow cannabis for medical use, and 24 of those states have also legalized recreational marijuana use. Washington, D.C., has legalized both. Advocates have pointed to the 10th Amendment to the U.S. Constitution as uplifting the rights of states, and of Nebraska voters, to make their voices heard on marijuana policies.
When formal regulations are released this summer, regardless of how similar they are to the emergency rules, there will be a public comment period and an in-person hearing. Formal guidelines would go to Hilgers and his office for legal review and then to Pillen.
“The input that the public provides on these emergency regulations will help us immediately begin drafting the regular regulations,” Commissioner Lorelle Mueting of Gretna, an addiction prevention specialist through Heartland Family Service, said last week.
Crista Eggers, executive director of Nebraskans for Medical Marijuana, the campaign that ushered the laws through the 2024 election, said Tuesday that the commission has “failed on day one” by prohibiting the sale of whole-plant cannabis and limiting permissible methods of using cannabis under the regulations. Eggers said the ballot measures were clear on what Nebraskans and that “any attempt to dilute access or restrict parts of the plant is both unacceptable and unlawful.”
“We, the patients, families, caregivers, voters and citizens, will not be silent while this Commission defies its clear mandate. It is not their role to rewrite or reinterpret what the people have already decided. This Commission was created by and for the people of Nebraska, and it must answer to them,” Eggers said in a statement. “Let me be clear: This blatant disregard of their duty and the law will not be tolerated.”
The next Medical Cannabis Commission meeting is currently set for August 4.
This story was first published by Nebraska Examiner.
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