Vicente LLP Southeast U.S. Regional Update: February 2024
By Sally Kent Peebles, David Ullian
Feb 13, 2024
Vicente LLP 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 this year (looking at you, Mississippi!), some on the verge of doing so, and one standout state that has fully legalized marijuana for adult use.
Southern States with Current Licensing Opportunities
Mississippi
Mississippi legalized medical cannabis in February 2022 after a dramatic Supreme Court reversal of the voter-approved constitutional amendment, Initiative 65. The Mississippi Medical Cannabis Act (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 allows 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.
As the Mississippi cannabis market matures and the patient count continues to grow (as of February 13, 2024, the patient count is currently 34,015), so do opportunities for interested operators. As of February 11, 2024. there are currently:
- 130 cultivation facilities
- 186 dispensaries
- 27 processing facilities
- 24 transportation licensees
- 7 disposal licensees
- 4 testing facilities
The initial residency requirement for cultivators and processors expired just last year, which represents a major opportunity for experienced out-of-state operators to enter the Mississippi market.
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 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, House Bill 615 was introduced on January 24, 2024, and is currently pending in the House Drug Policy Committee. Titled the Mississippi Retail Marijuana Act, it would legalize adult-use cannabis and create a licensed commercial program for its sale. It also would create five (5) new license types: (i) retail marijuana business operator license; (ii) retail marijuana accelerator cultivator license; (iii) retail marijuana accelerator manufacturer license; (iv) retail marijuana accelerator store license; and (v) a marijuana hospitality business licenses. The hospitality business would permit both brick and mortar, as well as mobile, facilities to allow for the on-site consumption of marijuana by adults 21 and over. It specifically also allows retail food businesses to apply for such a license to be operated within their current retail food location.
Over the past two years, our team has helped interested parties get licensed in Mississippi, and are helping current licensees maintain compliance and navigate the changing regulatory landscape. Please contact Sally Kent Peebles if you are interested in learning more.
Virginia
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. While the VCCA became effective on July 1, 2021, the General Assembly never created the legislative framework for regulating the adult-use retail market. However, that is about to change. The General Assembly has convened for its 2024 legislative session, and bills to regulate the adult use market have been introduced in the House (HB 698) and the Senate (SB 448). These bills will allow for retail sales of adult-use cannabis in Virginia.
In the meantime, the Virginia Cannabis Control Authority has issued guidance on what is and what is not legal. Please note that currently, 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).
Virginia intends to accept applications as early as March 2024 for a single Pharmaceutical Processor Permit, i.e. a vertically integrated medical cannabis license. Virginia has five health service areas, and one of them, Health Service 1 located in the northwestern region, has a vacancy. The application for this license may be out as early as this month (February 2024), with a deadline to submit in March 2024 and a conditional license to be issued by June 2024. Virginia has 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" 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.
Southern States with Licensing Opportunities in the Next Year
Kentucky
Kentucky is heating up! Last summer, Kentucky became the 38th state to legalize medical cannabis, and the department that is tasked to regulate the program, the Cabinet for Health and Family Services (the “Cabinet”), is required to establish regulations no later than July 1, 2024, with the program being in full effect no later than January 1, 2025. On January 4, 2024, the Cabinet released ten sets of proposed rules for medical cannabis businesses. These proposed rules include definitions and operational requirements for cultivators, processors, producers (dually licensed cultivation and processing facilities), safety compliance facilities (testing), and dispensaries, as well as requirements for medical cannabis transportation and delivery, advertising, packaging and labeling, and testing. We are now anxiously awaiting the rules that will govern the application process. Please be on the lookout for our informational Vicente blog post when those highly anticipated application rules are released.
At this time, the statute does not include a state-level licensure cap which means the application will likely not be competitive but will be more akin to the Colorado, Oregon, and Mississippi programs where the focus is instead on having possession of a compliant facility and the individual owners qualifying for ownership. The following license types will be available: Cultivator, Processor, Producer (includes both a cultivator and processor license), Dispensary, and Safety Compliance Facilities (testing labs). There is no prohibition on common ownership of multiple licenses or license types, except for common ownership of a Safety Compliance Facility and any of the other license types. Further, the statute does not include a residency requirement for owners and does not include social equity requirements.
While this bill allows for the use of medicinal cannabis, this does not include the cultivation of marijuana by a cardholder, the use or consumption of marijuana by smoking, or the use of industrial hemp or industrial hemp products.
If you are interested in meeting our Vicente team, please consider joining us at the NORML Kentucky Cannabis Conference on March 7-9, 2024 in Frankfort, Kentucky. Vicente partner Sally Kent Peebles will be presenting at the conference on licensing best practices. If you would like to set up an in-person meeting with Sally before or during the conference in Kentucky or would like to discuss entering the Kentucky cannabis market, please reach out to her at s.peebles@vicentellp.com.
Florida
The wait continues in the Sunshine State for the 74 hopeful applicants who submitted competitive applications in April 2023, vying to obtain one of the 22 vertically integrated Medical Marijuana Treatment Center licenses (MMTC). MMTC licenses are arguably the most valuable marijuana businesses in the world, each one allowing unlimited cultivation, processing, and dispensing locations. The Florida Department of Health’s Office of Medical Marijuana Use (the “OMMU”) is anticipated to issue their notice of intent to award to the 22 highest-scoring applicants in late Spring 2024. Among other requirements, MMTC applicants had to be registered to do business in Florida for at least five consecutive years prior to submitting the application, hold a nurseryman certificate from the Department of Agriculture, have a qualified medical director on staff, and pay a hefty $146,000 application fee.
If you are interested in applying in a future round for a Florida MMTC, you may have a chance in the next year or so. Florida’s medical marijuana statute, F.S. 381.986, includes a requirement that the OMMU must issue an additional four MMTC licenses every time the patient population count reaches a 100,000 milestone. The current patient count is approaching the 900,000 threshold, which will trigger the OMMU to issue additional licenses. However, the timing of that is uncertain. Any future MMTC licenses will be issued via a "batching cycle," the details of which will be laid out in a future informative rule that will provide the new application window for the next batching cycle, as well as the available number of MMTC licenses to be issued in such batching cycle.
Notably, Florida is poised to be the second southern state to legalize marijuana (after Virginia). A group called Safe and Smart Florida gathered enough signatures for their ballot initiative to be considered for the November 2024 election. The initiative, heavily backed by the largest MMTC in Florida, Trulieve, must first pass Supreme Court muster before Florida voters have a chance to place their vote in support of ending cannabis prohibition in Florida. All eyes are on the Florida Supreme Court right now, and their highly anticipated decision should be announced by April 2024.
Southern States on the Verge: Ones to Watch
South Carolina
After failing to pass a medical cannabis legalization bill in 2023, the South Carolina Legislature is continuing its consideration of S. 423, The South Carolina Compassionate Care Act (the “SCCCA”), during the 2024 legislative session that began on January 9th. The Senate Medical Affairs Committee approved the current version of the legislation in February 2023. Still, a favorable vote by the full Senate is required before the bill can proceed to the House of Representatives.
If the current version of the conservative medical cannabis legalization bill is enacted into law, registered patients with qualifying debilitating medical conditions and a doctor’s recommendation would be permitted to purchase 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, and five independent testing laboratories.
Support for cannabis legalization in South Carolina remains strong. According to a Winthrop University Poll completed in April 2023, 76% of South Carolinians support legalizing medical cannabis, while 56% are in favor of legal recreational cannabis. Republican Senator Danny Verdin, the Chairman of the Senate Medical Affairs Committee, stated in January 2024 that he is “committed to a medicinal cannabis program that is for the health and well-being of South Carolinians.” Democratic House Minority Leader Todd Rutherford said that making South Carolina the 39th state to legalize medical marijuana is one of his caucus’ priorities this year.
Republican Senator Tom Davis, who has been the primary sponsor of medical cannabis legislation over the past nine years, recently indicated that his goal was to have the bill sent to the House in early February after passing quickly through the Senate. On February 7, 2024, the Senate convened for an initial floor debate on the bill and adopted an amendment related to vaping. Votes on second and third readings for the bill are expected to occur within the coming weeks that could result in a Senate-approved medical cannabis legalization bill being sent over to the House.
Considering that the Senate approved a similar medical cannabis legalization bill in 2022, a majority of the Senate recently voted to give the bill special order consideration, and a substantial majority of South Carolina voters support legalizing medical cannabis, there is reason to be cautiously optimistic that a version of the SCCCA will finally be enacted into law this year.
In addition to the regulation of medical cannabis for qualified patients, the production and sale of hemp-derived cannabinoid products may also soon be regulated in South Carolina. Referred to the House Committee on Medical, Military, Public, and Municipal Affairs on January 9, 2024, H. 4628 would establish a state regulatory system for the production, wholesale distribution, and retail sale of certain products containing hemp-derived cannabinoids, including products containing no more than 0.3% Delta-9-THC as well as products containing Delta-8, Delta-10, and THCA.
Most notably, H. 4628 would require a business to obtain a license from the state Department of Agriculture to manufacture or sell such hemp-derived cannabinoid products. The bill would also require manufactured products to be tested for cannabinoid content and contaminants by a third-party testing laboratory, establish requirements for packaging, labeling, and serving sizes, and impose restrictions on advertising. Retail sales would be subject to a 5% state excise tax and restricted to individuals 21 years of age and older.
A statute formally regulating hemp-derived cannabinoid products would also be particularly relevant in light of growing public interest in South Carolina in food and beverage products containing hemp-derived cannabinoids. Notably, the South Carolina Department of Health and Environmental Control (DHEC) issued a guidance letter in January 2024 that seeks to provide clarification about the prohibitions and requirements for such food and beverage products.
If you have any questions or would like to schedule a call to discuss cannabis developments in South Carolina, please contact David M. Ullian at d.ullian@vicentellp.com or 617-752-7148.
North Carolina
After failing to pass a medical cannabis legalization bill in 2023, the North Carolina General Assembly is expected to continue debating S.B. 3, The North Carolina Compassionate Care Act (the “NCCCA”) when it reconvenes for the legislative session in April 2024. The Senate approved the current version of the legislation in early March 2023, but the bill stalled in the House of Representatives in May 2023.
If the current version of the NCCCA is enacted into law, it would allow registered patients with qualifying debilitating medical conditions to purchase 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 ten 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 would be permitted to own and operate up to eight medical cannabis centers.
Public support for medical cannabis legalization in North Carolina is very strong, which increases the likelihood that a medical cannabis legalization bill will eventually be enacted into law. According to a Meredith poll conducted in January 2024, 78% of North Carolinians support the passage of legislation allowing the use of marijuana for medical purposes, including a majority of residents that self-identify as the most conservative.
Like many other states, the North Carolina General Assembly is also taking legislative action to regulate certain hemp-derived and kratom products that are not controlled substances under current law and are commonly offered for sale across the country. On September 21, 2023, the North Carolina House of Representatives voted unanimously to approve HB 563, which would establish a state regulatory system for the sale and distribution of hemp-derived consumable products, including products containing cannabidiol (CBD), delta-8, and delta-10, as well as kratom products. The bill will also likely be considered by the Senate when it reconvenes in April 2024.
Most notably, the legislation would require a business to obtain a license from the state Department of Revenue to manufacture, distribute, or sell hemp-derived consumable products and kratom products. The bill would also require such products to be tested by an independent testing laboratory prior to distribution, establish requirements for packaging and serving sizes, and impose restrictions on advertising. Sales would be restricted to individuals 18 years of age and older, and the use of these products on school property would be prohibited.
If you have any questions or would like to schedule a call to discuss cannabis developments in North Carolina, please contact David M. Ullian at d.ullian@vicentellp.com or 617-752-7148.
West Virginia
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" are 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 (the “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.
In 2020, the OMC announced the successful applicants for medical cannabis growers and processors, with medical cannabis dispensary permit winners announced in 2021. Applications for medical growers, processors, and dispensaries are not currently being accepted.
On the adult-use cannabis legalization front, House Bill 4873 has been introduced in the 2024 legislative session and would legalize the possession and consumption of adult-use cannabis for adults 21 and over, set a 15% state excise tax and a 6% local sales tax, allow counties to pass local bans on commercial activity, and would distribute tax revenue to a state employee pension fund as well as to drug-treatment programs and law enforcement. It would also require marijuana products to be grown, manufactured, and sold by licensed “cannabis establishments.” The bill includes a helpful timeline, which states that implementing rules must be issued no later than July 1, 2025, and requires regulators to begin accepting and processing applications no later than October 1, 2025 if the bill is passed.
Tennessee
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. This is notable for the region, as each of its eight border states has enacted medical cannabis laws. 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 2024 session. This is welcome news for the 81% of Tennesseans that support medical marijuana reform. HB2654/SB2786 and HB2657/SB2726 would require county election commissions to include on the ballot for the November 2024 election a non-binding question related to the legalization of the sale, possession, and use of medical marijuana and adult use of marijuana respectively. Additionally, HB2413/SB2468 would authorize the retail sale of adult-use marijuana and would levy a 12% tax on the products.
Southern States with Current and Emerging Regulated Programs
Georgia
Georgia’s medical marijuana program has been slow to start and marred with ongoing litigation. In 2019, Gov. Brian Kemp (R) signed HB 324, “Georgia’s Hope Act, ” into law. The Office of Low-THC Oil Control within the Georgia Department of Public Health was tasked with issuing up to six (6) licenses to successful applicants for the production and manufacturing of low THC oil; two (2) Class 1 Production Licenses and four (4) Class II Production Licenses. The two licenses will enable its holder to grow up to 100,000 square feet of indoor cannabis and 50,000 square feet of indoor cannabis, respectively, 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.
Georgia’s Medical Marijuana Commission accepted applications for Class One and Class Two Production Licensees in late 2020 and announced its intent to issue licenses to certain parties in July 2021. The two Class One licenses were finally issued in September 2022 and the four Class Two licenses were issued in November 2023, three years after they initially applied.
Despite the delay, legislation has been passed over the years to improve and expand the program. In October 2023, the Georgia Board of Pharmacy issued regulations allowing licensed retail pharmacies that comply with certain location and other requirements to obtain a special permit to dispense low-THC products to registered patients. Nearly 120 pharmacies initially applied, but this apparent progress in patient access was stalled just two months later when the DEA issued warnings to pharmacies across the state of Georgia that dispensing THC is an unlawful activity because it remains a Schedule 1 controlled substance. In light of the warning, it is unlikely that pharmacies will move forward with dispensing, though this remains unknown at this time. Registered patients may still purchase medical marijuana from one of the seven dispensaries operated by the current production licensees.
Georgia failed to act on further cannabis reform in the 2023 legislative session, but since the state has a two-year legislative process, there is a chance that some of the bills that did not pass in 2023 could be taken up again in 2024. In light of the fact that 2/3 of Georgians believe that cannabis should be legal, we are hopeful that legislators will listen to their constituents and make some positive changes to end prohibition this year.
Louisiana
Although Louisiana’s medical cannabis program has improved since medical cannabis was legalized by the state legislature in 2015, the program continues to be very restrictive and limited. Only two entities – the Louisiana State University Agricultural Center and the Southern University Agricultural Center -- are currently licensed by the state to produce medical cannabis and cannabis products, and these two licensees contract with a third-party company to manage the cultivation, processing, testing, and transportation of medical cannabis products.
As required by state law, only 10 therapeutic marijuana pharmacy permits have been issued by the Louisiana Board of Pharmacy to dispense medical cannabis to registered patients. The Board of Pharmacy is required to allow a therapeutic marijuana pharmacy licensee to operate an additional “satellite location” after 3500 active, qualified patients are identified in the marijuana pharmacy’s geographic region. If the existing licensee declines to open a second satellite location, the Board of Pharmacy may issue an additional marijuana pharmacy license to a new applicant to operate one pharmacy facility in that region.
The Louisiana Department of Health has been accepting applications for therapeutic marijuana testing laboratory licenses, but the opportunities for new operators to enter the legal medical cannabis market in Louisiana are extremely limited at this time.
Several attempts were made to legalize adult-use cannabis through the conservative state legislature in 2023, but no bills advanced out of committees despite strong public support. According to Louisiana State University’s 2023 Louisiana Survey poll, 70% of respondents support allowing people to legally possess small amounts of marijuana for recreational use. A recent market analysis for the adult-use cannabis industry in Louisiana forecasts $922 million a year in sales starting in the third year of implementation. However, as most lawmakers have consistently opposed efforts to legalize adult-use cannabis, it seems unlikely that opportunities to participate in the adult-use cannabis industry in Louisiana will arise in the near future.
Alabama
In May 2021, Alabama Governor Kay Ivey signed SB46, the Darren Wesley 'Ato" Hall Compassion Act into law, establishing a legal, regulated medical cannabis program for patients with qualifying medical conditions.
The law provides for a broad range of qualifying medical conditions but only allows for limited infused product types, including gelatin cubes, lozenges, oils, suppositories, nebulizers, patches, and pills. Marijuana flower, vaporization, candies, and baked goods are prohibited.
In late December 2022, the Alabama Medical Cannabis Commission (AMCC) closed the highly competitive application period for up to 12 cannabis 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 laboratory licenses. A lengthy Alabama residency requirement—15 years—applies to some of the integrated facility and cultivation licenses. A social equity component is also included, with at least 25% of all non-integrated licenses and at least 20% of all integrated facility licenses, to be awarded to businesses with majority ownership and control held by individuals of African American, Native American, Asian or Hispanic descent.
Since initially awarding licenses to 21 companies in June 2023, the AMCC has been embroiled in controversy about its application review and decision-making processes. A series of administrative appeals and civil lawsuits filed by applicants who were denied licenses led the AMCC to rescind the license awards and denials, create new procedures for reviewing license applications, and conduct new licensing rounds for certain license types, which subsequently led to new lawsuits being filed.
The AMCC has stated that the goal is to have the first legal sales of medical cannabis to patients begin this year, but the ongoing litigation over the limited number of available licenses continues to cause delay and it is unclear when Alabama’s new medical cannabis program will finally launch.
Arkansas
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. 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.
Most recently, the group Arkansans for Medical Access (the “AMA”) submitted the proposed language for the Arkansas Medical Cannabis Amendment of 2024 which would allow several changes to the current medical cannabis law, including, but not limited to, home grow for patients and caregivers, allow medical cannabis for any medical need, expand practitioners who can recommend to include pharmacists, nurse practitioners and physician assistants, and allow for telemedicine and reciprocity for out of state residents. On January 29, 2024, the Attorney General rejected the proposed language, but the AMA will thankfully be able to amend and resubmit for consideration.
Events
February 29 | Jacksonville Area Cannabis Business Networking at Mellow Mushroom
Join Sally Kent Peebles and Cannabis LAB in Jacksonville, FL on February 29 for an afternoon of networking and collaboration with others in the cannabis industry. The industry social will take place at Mellow Mushroom from 6:00-9:00 p.m. ET. Click here to register.
March 7-9 | Kentucky Cannabis Conference
If you are interested in meeting our Vicente team, please consider joining us at the NORML Kentucky Cannabis Conference on March 7-9, 2024 in Frankfort, Kentucky. Vicente partner Sally Kent Peebles will be presenting at the conference on licensing best practices. If you would like to set up an in-person meeting with Sally before or during the conference in Kentucky or would like to discuss entering the Kentucky cannabis market, please reach out to her at s.peebles@vicentellp.com.