“By approving rules that pile on new barriers and unlawfully restrict forms of cannabis, they are dismantling what the people demanded at the ballot box.”

By Zach Wendling, Nebraska Examiner

The Nebraska Medical Cannabis Commission on Tuesday advanced stricter regulations than the board adopted earlier this summer, leaving some advocates feeling more concerned.

All five commissioners voted to amend the emergency regulations that have been in effect since June 29 but were set to expire by the end of September. The new regulations, which would still allow the commission to begin licensing registered medical cannabis establishments by a voter-mandated October 1 deadline, is contingent upon Gov. Jim Pillen’s (R) approval. He approved the first rules in June. Tuesday was the commission’s fourth meeting since June, the first that all commissioners attended.

The revised regulations would, for the first time, set extensive testing and security requirements and establish a “Recommending Health Care Practitioner Directory” for in-state physicians to recommend medical cannabis. If approved, the rules would remain in effect for up to 90 days.

Practitioners participating in the program would have to take 10 hours of continuing education on medical cannabis and complete two hours annually to stay in compliance. Physicians would need to prescribe specific dosages and potency levels. After that, a patient or caregiver could purchase the recommended medical cannabis amount at a specific dispensary only once every 30 days.

Under the regulations, patients or caregivers could purchase up to 5 ounces of medical cannabis in a 30-day period, which is about 142 grams. But they could purchase no more than 5 grams of delta-9 tetrahydrocannabinol (THC) from the same dispensary within a 90-day period. Delta-9 THC is the part of cannabis most associated with a “high.”

The amended requirements maintain a statewide limit of no more than 12 medical cannabis dispensaries, arranged by judicial district. 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.

The rules would still prohibit dispensaries from selling smoking or vaping products and edibles of any kind. While the earlier rules would have allowed the sale of non-sugarcoated gelatinous cubes, the revised rules would not. Oral tablets with a “thin layer” of flavoring to make the products swallowable would now be allowed.

Under current law, a patient or qualified caregiver with a recommendation from any health care practitioner can legally possess up to 5 ounces of medical cannabis, in any form. But without licensing, cannabis can’t legally be purchased in Nebraska yet.

2024 ballot measures

Crista Eggers, executive director of Nebraskans for Medical Marijuana, the nonprofit that led the successful 2024 ballot measures to legalize and regulate medical cannabis, said Tuesday’s vote should leave Nebraskans “outraged.”

About 71 percent of voters in November approved legalization, and about 67 percent created the Medical Cannabis Commission and “exclusively” vested in it the authority to regulate the drug.

Among Eggers’s frustrations was the board’s decision to limit the number of cultivator licenses and products manufacturer licenses offered to four each. The earlier emergency regulations and state law set no limit.

Eggers told the Nebraska Examiner that commissioners “didn’t just ignore” their voter-mandated regulatory authority, “they shredded it.”

“By approving rules that pile on new barriers and unlawfully restrict forms of cannabis, they are dismantling what the people demanded at the ballot box,” Eggers said in a statement. “This is a direct assault on patients, families and the democratic process itself. Nebraskans voted for access to medicine.”

“Instead, the commission delivered defiance, obstruction and betrayal.”

Confusion over draft regs

The new proposed set of emergency regulations was released quietly late Tuesday morning. The timing left advocates scrambling to understand the changes between an early 20-page set of rules to the new 46-page document.

That’s if the public knew the regulations were ready for review at all, or if they could decipher what the commission intended by releasing two versions of draft regulations: a “Version A” (with 46 pages) and a “Version B with highlights” (47 pages) to be considered at the 1 p.m. hearing.

The commission did not explain the competing drafts before the public comment period, and many advocates told the Examiner they thought “Version B” was the set they should review, given the “highlighted” label and a limited time frame.

Among the major differences: “Version B” would have allowed up to 21 dispensaries rather than 12, with more dispensaries allowed in more populous areas. It also appeared to permit vaping and created a framework of vertical licensing, or the ability for someone to apply for multiple types of licenses.

However, those changes, endorsed by multiple testifiers across the commission’s initial meetings, fell mostly on deaf ears, with only Commissioner Bruce Bailey of Lincoln voicing public support.

Public weighs in

Eggers, at one point Tuesday, thanked commissioners for listening to Nebraskans about the higher dispensary limit, not yet knowing the board was preparing to go in another direction.

She said limiting cultivators was “counterintuitive” and could break the supply chain “from the start.”

Cody Jester of Fairfield echoed Eggers’s concerns and said he was interested in cultivation. He said he had tried to work with local officials and his local health department, a requirement the first regulations outlined. But the new regulations adopted Tuesday removed that step. Jester said it could take months to grow medical cannabis but that farmers were ready.

Josh Egle from Banner County said he appreciated the commission establishing a lottery system to review licensing applications. But he suggested a hybrid lottery-merit system that could bring in quality candidates but also allow the participation of locals wanting to get involved.

Denise Wegener of Omaha said the quickest alleviation for her is smoking or vaping marijuana, which she said has given her her life back from a debilitating health condition.

“We’re not just Joe Schmo out here recreationally getting high for fun,” Wegener said. “We’re using this as medication to heal our bodies.”

Several people also again encouraged the commission to view them as patients. Lia Post of Springfield, for instance, told the commission to not listen to Nebraska Attorney General Mike Hilgers (R) and U.S. Sen. Pete Ricketts, R-Neb., who urged lawmakers not to pass a medical cannabis legislative bill this spring.

That bill, backed by Eggers, Post and other 2024 petitioners, sought to give commissioners more funding, time and support. It fell 10 votes short, leaving the regulatory board to act on its own, with limited funds.

“I’m so glad my life is now in the hands of this Pete Ricketts-Jim Pillen-Mike Hilgers firing squad. Yay,” Post told the commission. “More people who want me and patients like me to die.”

Bill Hawkins of the Nebraska Hemp Company also lambasted the commission for the new health care practitioner directory that would exclude out-of-state recommendations.

“Patients’ rights are still in effect,” said Hawkins, who is again leading a petition effort to legalize recreational marijuana. “There is nothing in the law that says a patient with a recommendation—from any state, any ailment—[has] to buy your poison pill from your dispensary.”

Cultivators and vaping

Bailey echoed the public’s support for more cultivators and for vertical licensing, suggesting more for cultivators, possibly six. He cautioned that one cultivator’s supply chain failure, or a bad crop year, could ripple and cause costs to skyrocket. He also said the growing limit didn’t make sense, adding: “I can’t imagine buying a farm and telling me I can’t grow corn because my neighbor’s growing.”

“You got the funnel upside down,” Bailey said. “We want competition in this world. That’s what free enterprise is about.”

Commissioners Monica Oldenburg of Lincoln and Lorelle Mueting of Gretna said they worried about oversaturation compared to other states.

But Bailey contended that without competition, Nebraska could create a black market opposite to the commission’s intent and that many cultivators wouldn’t grow product if there wasn’t demand.

Bailey also led the charge to allow vaping products, a stance that Oldenburg, an anesthesiologist and commission chair, and Mueting, an addiction prevention specialist, resisted. The two women had expressed their stance when Pillen appointed them in May.

“Nobody will say that vaping is medicine,” Oldenburg said. “And when I’ve talked to every physician that I know and I ask them this, they really do look at me like I have three heads, like I’m making a funny joke.”

Legal threats

After the back and forth, commissioners entered a closed session for more than an hour to discuss what they described as “strategy for imminent litigation.”

The commission is currently being sued to overturn the voter-approved laws, with a former state senator mainly arguing the state laws contradict federal law against marijuana. A Lancaster County judge dismissed the case. It is being appealed.

At the same time, Hilgers and his office have threatened to sue the commission when it begins licensing, which could come as early as the commission’s meeting on September 30. He has advanced a similar argument that the voter-approved laws are preempted by federal law.

After emerging from the executive session, Mueting suggested about six changes, roughly what Bailey had suggested, including the change capping cultivators at four, for instance. But commissioners didn’t discuss why they were proposing those specific changes over others.

Mueting also updated a separate regulatory effort to establish a seed-to-sale tracking system without state funds. She said a company Metrc, a cannabis compliance tracking system and software firm, had voiced interest in exploring a self-funded model in which businesses would pay into the Nebraska system instead of paying the commission.

Without legislative approval, the commission can’t accept any fees, fines or funds. In the meantime, the commission will partner with the Nebraska Liquor Control Commission, of which Bailey is chair, to share up to $150,000 to cover the cannabis board’s operating expenses.

‘Knock-down, drag-out process’

The commissions also plan to cooperate in asking lawmakers for sufficient funds next session after lawmakers refused to give the Medical Cannabis Commission its own line item in the state budget.

The commission will prioritize cultivator licenses first. Applications meeting the commission regulations can be emailed to [email protected] or mailed to the Liquor Control Commission between September 4 and September 23.

Despite legal threats and legislative inaction, Eggers and others said voters have given the commission a clear mandate.

“This doesn’t have to be a knock-down, drag-out process, but there is a clear law that was passed,” Eggers told the commission. “I would appreciate, and the patients here and the patients in this state would appreciate you adhering to what the voters passed.”

The Medical Cannabis Commission is scheduled to meet next at 1 p.m. September 30.

This story was first published by Nebraska Examiner.