Southeast U.S. Regional Cannabis Update: January 2023
By Sally Kent Peebles, David Ullian
Jan 31, 2023
VS has been keeping a close eye on the cannabis industry in the Southeast. After years of slow development, we are thrilled to say that the region is poised to experience its own green industry boom, with several states having just jump-started their programs (looking at you, Mississippi!), some on the verge of doing so, and one standout state that has fully legalized marijuana for adult use.
In response to the incredible interest our firm has been getting in this region, VS is issuing our inaugural Southeast Update newsletter to provide an overview of each Southern state's current marijuana policy status and summaries of any current legislation. In future editions, we'll share short updates, news and events related to this region.
If you are interested in learning more about any of these states, please contact VS partner Sally Kent Peebles, Esq. at firstname.lastname@example.org. Sally hails from Florida and previously practiced in the firm's Colorado office for several years before moving back home to open up the firm's Southern outpost.
Southeast States With Cannabis Legalized for Adult Use
Virginia is the only state in the South that has fully legalized cannabis for adult use, and we hope that its neighbors feel inclined to follow suit. In April of 2021, the Virginia Cannabis Control Act (VCCA) passed, making it the 17th state in the U.S. to legalize cannabis for adult use. The VCCA also expanded Virginia's existing medical cannabis program to allow pharmaceutical processors to sell "botanical cannabis," commonly referred to as flower, in addition to THC-A and CBD oil. The VCCA became effective on July 1, 2021; however, the 2022 General Assembly did not re-enact the legislative framework for creating an adult-use retail market. As of now, it is legal for adults 21 years or older to possess up to an ounce of cannabis, use cannabis in private residences, grow up to four plants per household and engage in "adult sharing" (i.e. transferring one ounce or less of marijuana between adults over 21 without remuneration). Unfortunately, there are no retail sales of adult-use cannabis in Virginia yet.
Virginia does have a comprehensive medical cannabis program under a law that was passed in 2017, which allowed patients suffering from intractable epilepsy to access CBD and THC-A oil from licensed "Pharmaceutical Processors" (Virginia's term for medical cannabis vertically integrated cultivators, manufacturers, and retailers) upon receipt of a written certification from a licensed medical or nursing practitioner registered with the Virginia Board of Pharmacy. Since then, Virginia's medical marijuana program has improved via several pieces of key legislation that expanded the qualifying list of medical conditions and even provided employment protections for patients.
Southeast States With Regulated Medical Marijuana Programs
On December 20, 2022, the Florida Department of Health's Office of Medical Marijuana Use released Emergency Rule 64ER22-9 along with an application, setting the stage for how the Department will handle the highly anticipated upcoming Medical Marijuana Treatment Center license (MMTC) application round. MMTC licenses are arguably the most valuable marijuana businesses in the world, each one allowing unlimited cultivation, processing and dispensing locations. This application rule release is a welcome development for those parties who have been patiently waiting to participate in the Sunshine State's marijuana industry.
Florida's medical marijuana program has been stalled for several years, keeping the number of MMTC licenses at 17. For historical context, in 2014, the Florida legislature passed a low-THC cannabis law that allowed patients with a limited number of qualifying conditions to access low-THC cannabis and cannabis products. In 2015, five vertically integrated dispensing organization licenses were awarded and the very limited program was then expanded in November of 2016 when voters passed Amendment 2. Amendment 2 increased the array of qualifying conditions and gave patients access to full-strength medical cannabis. The Florida legislature then passed Senate Bill 8-A in 2017, which implemented the Amendment but restricted the original initiative by requiring vertical integration, limiting licenses at the state level, and prohibiting the sale and smoking of whole-plant cannabis flower. Then, in March 2019, Governor Ron DeSantis signed a bill amending the Rule to allow the smoking of whole-plant cannabis flower.
Pursuant to 64ER22-9, the Department plans to issue future MMTC licenses via several "batching cycles." The Department will issue an additional informative rule in the future, which will lay out the application window for the batching cycles. It will also include the available number of MMTC licenses to be issued in each batching cycle. This highly anticipated "window application rule" is expected to be released in the next couple of weeks.
As part of the upcoming MMTC application process, the Department will require a non-refundable application fee of $146,000, due each time an applicant applies. Among other requirements, MMTC applicants must have been registered to do business in Florida for at least five consecutive years prior to submitting the application, must hold a nurseryman certificate from the Department of Agriculture, and are required to have a qualified medical director on staff.
Notably, a group called Safe and Smart Florida is gathering signatures for a November 2024 ballot initiative to legalize adult-use cannabis. The initiative, heavily backed by the largest MMTC in Florida, Trulieve, will need to gather almost 900,000 signatures and pass Supreme Court muster before Florida voters have a chance to place their vote in support of ending cannabis prohibition in the Sunshine State.
Vicente Sederberg is currently taking on clients for the corporate, real estate and regulatory legal work related to the upcoming Florida medical marijuana application process. Contact Sally to get started.
Nearly one year after Governor Reeves signed the Mississippi Medical cannabis Act (MMCA), medical marijuana sales launched in the Magnolia State on January 25, 2023.
As a background, passed in February 2022, the MMCA legalized the use of medical marijuana by registered patients suffering from a broad range of medical conditions. The MMCA achieved what no other southern state had yet to accomplish—the development of a refreshingly non-competitive licensed program that should allow for greater patient access and lower barriers to entry for those interested in participating in this exciting industry.
The MMCA tasked the Mississippi Department of Health (MDOH) to develop a comprehensive commercial program wherein licensees can cultivate, process, sell, transport, dispose of, research, and test medical marijuana. The Mississippi Department of Revenue (MDOR) oversees the medical cannabis dispensary licenses, while the MDOH oversees all other license types.
Those interested in participating in the exciting Mississippi industry can still apply for licensure. The application process is structured as a rolling process, and there is no limit on the number of cannabis facility licenses the state will issue. However, please note that no individual or entity may have a direct or indirect ownership or economic interest of more than 10% in more than one cultivation facility license, more than one processing facility license, or more than five dispensary licenses. Vertical integration is permitted, but not required. Applicants should carefully choose their locations, as there are strict setbacks from schools, childcare facilities and churches, and some local jurisdictions have opted-out of allowing facilities within their boundaries.
As for the future of adult-use cannabis in Mississippi, two bills recently proposed would legalize cannabis. HB 338, the Mississippi Retail Marijuana Act, would legalize adult-use cannabis and create a licensed commercial program for its sale. SB 2097 would allow the adult-use possession of up to 70 grams of cannabis for adults, but would not create a commercial program.
Over the past year, the VS team has helped interested parties get licensed in Mississippi. We are familiar with the ins and outs of the medical cannabis program and the nuances of the law. Please contact Sally Kent Peebles if you are interested in learning more.
Louisiana's legislature passed Act 261 in 2015, allowing certain physicians to recommend medical marijuana, and initially permitted only nine pharmacies to dispense medical marijuana. This Act allowed medical marijuana to be recommended to a limited patient pool and gave two universities, Louisiana State University and Southern University, the ability to be the sole medical marijuana cultivators in the state. As you can see, Act 261 created a very restrictive program. Thankfully, since Act 261 was passed, Louisiana legislators have passed several additional bills to expand the program, including increasing the number of qualified conditions, and allowing flower.
In 2022, we saw significant changes to Louisiana's medical cannabis program. Changes included expanding the number of dispensaries to 10, allowing reciprocity to non-Louisiana resident medical marijuana patients and permitting certain nurse practitioners to recommend medical marijuana to qualified patients, all of which have contributed to expanding patient access in the state. Two bills were drafted to pass adult-use marijuana in the state; however, neither made it out of committee. Even still, support for adult-use legalization continues to be promoted in the Pelican State, and VS will be watching the advancement of these efforts closely.
In 2016, Arkansas voters approved Issue 6, the Arkansas Medical Marijuana Amendment, which established a system for the cultivation and distribution of medical marijuana for qualifying patients through medical marijuana care centers. The implementing rules allowed for issuing up to eight cultivation licenses and 40 dispensary licenses, which have been issued according to population based on eight geographic zones.
While Arkansas was hailed as an outlier for being the first in the Southeast to legalize medical marijuana, it ran into several implementation issues involving lawsuits and licensing. It took three years for patients to be able to purchase products from licensed dispensaries, and by early 2020, only half of the originally-permitted dispensaries were open and operating. By 2022, 38 dispensaries were operational.
Arkansas does have ownership restrictions based on state residency, requiring that seven-year residents hold 60% of the ownership interests in a licensed entity. There are also restrictions on ownership of more than one license of either type.
In November 2022, Issue 4, a very promising adult use ballot initiative heavily supported by the existing medical marijuana licensees, was defeated by a 56.3% - 43.7% margin. At this time, no further efforts to legalize marijuana in Arkansas have been officially announced, though we anticipate activists will take up the issue in the future.
In May 2021, Alabama's Governor, Kay Ivey, signed SB46 into law, giving Alabama citizens with a medical cannabis card the right to use and access medical marijuana legally.
SB46 includes a broad range of qualifying conditions, including autism; cancer-related pain, nausea, or weight loss; Crohn's; epilepsy; HIV/AIDS-related nausea; persistent nausea that has not significantly responded to other treatments; PTSD; sickle cell anemia; panic disorder; depression; Tourette's; Parkinson's disease; spasticity related to multiple sclerosis, a motor neuron disease, or spinal cord injury; terminal illness; or a condition causing intractable or chronic pain "in which conventional therapeutic intervention and opiate therapy is contraindicated or has proved ineffective."
The law only allows for limited infused product types, including gelatin cubes, lozenges, oils, suppositories, nebulizers, patches and pills. The law prohibits marijuana flower, vaporization, candies, and baked goods.
In late December 2022, the regulatory agency tasked to oversee SB46's cannabis business license program, the Alabama Medical Cannabis Commission, begin accepting applications for up to 12 cultivation licenses, four processor licenses, four dispensary licenses, up to five integrated facility licenses (which are vertically integrated licenses permitted to cultivate, process, transport and dispense), as well as secure transporter and testing lab licenses. A lengthy Alabama residency requirement—15 years—applies to some of the integrated facility and cultivation licenses. A social equity component was also included, with a certain percentage of all of the licenses required to be awarded to businesses with majority ownership held by individuals of African American, Native American, Asian or Hispanic descent. No announcement has yet been made as to who will be granted these coveted licenses.
On April 19, 2017, Senate Bill 386 was signed into law creating the West Virginia Medical Cannabis Act. The Act permitted qualifying patients with serious medical conditions to register with the West Virginia Health Department to obtain medical cannabis. Included in their definition of "serious medical conditions" is cancer, HIV/AIDS, ALS, Parkinson's disease, MS, Epilepsy, Neuropathies, Huntington's disease, Crohn's disease, PTSD, intractable seizures, sickle cell anemia, severe chronic or intractable pain or any terminal illness defined as a medical prognosis of life expectancy of approximately one year or less if the illness runs its normal course, and damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
The Act included a business licensing structure for dispensaries. However, it was not until May of 2019, when the Act was amended legislatively through the passage of Senate Bill 1037, that patient access to medical cannabis was actually implemented. Per SB 1037, the West Virginia Department of Health and Human Resources, Bureau for Public Health, Office of Medical Cannabis (OMC) was directed to award no more than the following number and types of permits: 10 growers with each grower allowed two locations per permit; 10 processors with no more than one individual processor permit per person; and 100 dispensaries (expanded from 30 originally in SB 386) with no more than 10 individual dispensary permits to one person. Vertical integration is permitted but not required. Further, a person interested in licensure may hold a grower permit, a processor permit, and up to 10 dispensary permits, or any combination thereof.
Initially, the only forms of medical cannabis allowed in West Virginia were pills, oils, topicals, tinctures, liquids, or dermal patches. Though, in 2020, the West Virginia legislature passed Senate Bill 339, adding the "dry leaf or plant form" of cannabis. While the production of edibles and the smoking of medical cannabis are both prohibited, vaporization is currently permitted.
In late 2020, the OMC announced the successful applicants for medical cannabis growers and processors. The list of medical cannabis dispensary permit winners was announced in January 2021. Applications for growers, processors, and dispensaries are not currently being accepted.
On the adult-use cannabis legalization front, two bills were notably introduced in 2023 to legalize and regulate cannabis for adults in West Virginia. House Bill 2091 and Senate Bill 167 would legalize the possession of one ounce or less of cannabis and cannabis products by adults, and set up a regulated licensed structure to cultivate, process and dispense adult use cannabis. The bills include a timeline, which states that implementing rules must be issued no later than July 1, 2023 if the bills are passed.
Since its inception, Georgia's medical marijuana program has been marred with delays due to ongoing litigation. In 2019, Gov. Brian Kemp signed HB 324, "Georgia's Hope Act," into law. The Georgia Department of Public Health was tasked with issuing up to six licenses to successful applicants for producing and manufacturing low THC oil, two Class 1 Production Licenses, and four Class II Production Licenses. The two production licenses would enable licensees to grow up to 100,000 square feet of indoor cannabis (Class 1) and 50,000 square feet of indoor cannabis (Class 2), in addition to manufacturing low THC oil. The law tasked the State Board of Pharmacy to oversee the dispensing licenses, which would only be issued to existing licensed pharmacies.
In late 2020, Georgia's Medical Marijuana Commission accepted applications for Class One and Class Two Production Licensees, and announced its intent to issue licenses to certain parties in July 2021. Litigation was immediately filed by those unsuccessful in their bids, delaying the program's start. The two Class One licenses were finally issued in September 2022, and implementing rules were voted on in January 2023.
Despite the delay, legislation was passed in the meantime to improve and expand the program. In 2021, SB 195 expanded products to be available beyond oils to include tinctures, transdermal patches, lotions, and capsules, but unfortunately excluded edible products. Additionally, legislation passed to allow each of the Class One and Class Two Production licensees to operate dispensaries. Despite these improvements made to the law, over 22,000 registered medical marijuana patients have been waiting over four years for the program to get started. While the issuance of the four Class Two Production Licensees remains in limbo, it does appear that Georgia's program is poised to ramp up by mid to late 2023.
Ones to Watch: Southeast States with No Regulated Cannabis Programs But Have Proposed Cannabis Legislation
After the South Carolina General Assembly failed to pass a bill last year, the SC legislature will again consider a bill that would legalize and regulate the production and use of medical cannabis.
On January 19, 2023, Republican State Senator Tom Davis formally introduced S. 423, The South Carolina Compassionate Care Act (SCCCA). This bill is a slightly revised version of a prior medical cannabis legalization bill that passed the state Senate by a 28 - 15 bipartisan vote in February 2022, but stalled in the state House of Representatives due to procedural concerns arising from tax-related provisions.
The SCCCA would allow registered patients with qualifying debilitating medical conditions and a physician's written certification to purchase up to a 14-day supply of infused and extracted cannabis products from licensed therapeutic cannabis pharmacies. The state Department of Health and Environmental Control (DHEC) and the Board of Pharmacy would have responsibility for regulating and issuing licenses for a variety of medical cannabis establishments, including 15 cultivation center licenses, 30 processing facility licenses, four transporter licenses, one therapeutic cannabis pharmacy license for every 20 state-permitted pharmacies, five independent testing laboratories, a sufficient number of integrated operator licenses as recommended by a DHEC commission, and any number of qualifying research facilities that meet established requirements.
Once signed into law, DHEC and the Board of Pharmacy would be required to promulgate regulations within one year, begin accepting applications for licensure within 30 days after the regulations become effective, and issue licenses within six months after the regulations become effective.
According to a Winthrop poll conducted in November 2022, 78% of South Carolinians support medical cannabis legalization, including a majority of Republicans. It is unclear whether Republican Governor Henry McMaster would support or oppose the current version of the SCCA.
With a population over 5 million, and a range of qualifying debilitating medical conditions and available license types—including dozens of cannabis pharmacy licenses—under the proposed South Carolina Compassionate Care Act, the state of South Carolina appears to offer numerous opportunities for businesses interested in participating in this jurisdiction if the SCCCA is ultimately enacted into law.
If you have any questions or would like to schedule a call to discuss the new medical cannabis legislation in South Carolina, please contact David M. Ullian at email@example.com or (617) 934-2121.
After failing to pass a medical cannabis bill last year, the North Carolina General Assembly is preparing to consider a bill that would legalize and regulate the production and use of medical cannabis.
On January 25, 2023, Republican State Senator Bill Rabon—who is considered one of the most influential and effective state legislators in North Carolina—filed S.B. 3, The North Carolina Compassionate Care Act (NCCCA) as the first bill in the Senate's new legislative session. A prior version of a medical cannabis legalization bill passed the state Senate by a vote of 36 - 7 vote in June 2022, but the House of Representatives declined to take up the legislation.
The NCCCA would allow registered patients with qualifying debilitating medical conditions and a physician's written certification to purchase up to a 30-day supply of cannabis and cannabis-infused products from licensed medical cannabis centers. The state Department of Health and Human Services (DHHS) and a newly created Medical Cannabis Production Commission (MCPC) would be responsible for regulating and issuing licenses to 10 medical cannabis suppliers that would be authorized to produce cannabis and cannabis-infused products in licensed production facilities, and dispense them to registered patients through medical cannabis centers. Once licensed by the MCPC, a medical cannabis supplier is permitted to own and operate up to eight medical cannabis centers. DHHS would also be required to license up to five independent testing laboratories.
Once the NCCCA goes into effect, DHHS must adopt rules implementing the law within 270 days. The MCPC must also adopt its implementing rules and establish the medical cannabis supply system within 270 days of the MCPC's first meeting, which must occur within 60 days of the law going into effect.
According to a SurveyUSA poll conducted in April 2022, 72% of North Carolina voters support medical cannabis legalization, including a majority of Republicans. During an interview in December 2022, Democratic Governor Roy Cooper stated that a medical marijuana legalization bill "has an opportunity to pass" in the upcoming legislative session.
Although only 10 medical cannabis supplier licenses would be available under the NCCCA, an operator that is able to secure one of these licenses would be well-positioned in this new medical cannabis jurisdiction—particularly considering that the state population exceeds 10.5 million, there are a range of qualifying debilitating medical conditions, and a range of permissible cannabis product types, including flower, provided for under the new law if it is ultimately enacted.
If you have any questions or would like to schedule a call to discuss the new medical cannabis legislation in North Carolina, please contact David M. Ullian at firstname.lastname@example.org or (617) 934-2121.
Tennessee remains one of the few states in the United States that still does not allow patients access to medical marijuana via a state-regulated program. Currently, the Volunteer State has only a low THC/CBD law that provides some protection to enrolled patients in the program, but does not provide any regulated access to cannabis products. However, that fact may soon change with recent legislation proposed during the 2023 session. This is welcome news for the 81% of Tennesseans that support medical marijuana reform.
The newly-introduced Tennessee Medical Cannabis Act (HB 172) would establish a comprehensive medical cannabis program overseen by the Tennessee Department of Health (TDH). TDH would be tasked with licensing "medical cannabis establishments," including cultivation, dispensary, product manufacturing and testing facilities. The proposed law is very reasonable; it includes a comprehensive list of qualifying conditions, does not permit local jurisdictions to ban businesses within their boundaries, and even has some employee and benefit protections for registered patients.
The Tennessee Medical Cannabis Act was just assigned to the Health Subcommittee on January 24th, and VS will carefully watch its progress. If passed, the bill has a built-in timeline that requires implementing rules to be issued "as soon as practicable but no later than January 1, 2024."
On the adult-use legalization front, two bills have been proposed so far this year in Tennessee. Unfortunately, neither is expected to advance. With that said, the introduction of these bills may provide the impetus for valuable discussions surrounding the ultimate end of marijuana prohibition in the Tennessee.
2022 was an exciting time for Kentuckians fighting for medical marijuana patient rights. While no current commercialized licensed program exists yet in the state, several positive steps forward were made.
During the 2022 session, the House of Representatives passed HB 136, which would have legalized medical marijuana (it passed 59-34 with bipartisan support). However, the Senate never called for a vote. In reaction to this unfortunate development, Kentucky's leader, Gov. Beshears, a very outspoken supporter of reasonable cannabis reform, formed the Team Kentucky Medical Cannabis Advisory Committee. This committee received over 3,500 comments from the public. On November 15, 2022, Gov. Beshears issued Executive Order 2022-798 in the form of a pardon allowing Kentuckians who met certain requirements to possess up to 8 ounces of marijuana for medical use starting January 1, 2023. In order to qualify for a pardon under this Executive Order, the product must be purchased outside of the state of Kentucky and the individual must have a written certification by a healthcare provider certifying that the individual has one of the bulleted qualifying medical conditions.
The Kentucky legislature will have another chance to take up the medical marijuana issue with the recently introduced HB 107. This bill would set up a comprehensive medical marijuana program and task a newly formed oversight regulatory agency, the Department of Alcoholic Beverage and Cannabis Control, with issuing "cannabis business" licenses, including cultivation, dispensing, processing, producing ("producing" license includes both cultivation and processing ability) and a safety compliance officer.
The bill includes a timeline for license issuance, stating that within one year after the effective date of the bill, the Department must issue at least the following: 15 cannabis cultivator licenses; 25 cannabis dispensary licenses; five cannabis processor licenses; three cannabis producer licenses, and approve and issue a cannabis business license for at least one cannabis dispensary in each of the area development districts as established by statute. Notably, the application fee is only $100. This is in high contrast to a state like Florida, where the nonrefundable fee to apply is over $140,000.
Four different adult use bills have been introduced in Kentucky this year. Though, at this time, none are expected to advance. VS will be carefully tracking the advancements of all of these bills.