“The Commission is not allowed to adopt its definition of marijuana that is stricter than the one contained in law.”
By Zach Wendling, Nebraska Examiner
Unanimously, a state legislator has challenged the Nebraska Medical Cannabis Commission’s regulations that “disregard the will clearly expressed by Nebraska voters”.
A Thursday complaint led by State Sen. John Cavanaugh (D) of Omaha, a lawyer, narrows in on a handful of issues Cavanaugh cites in emergency regulations passed by the commission this summer. Commission members hope to have the final regulations and will hold a public meeting at Nebraska State Office Building, Lincoln on 15 October from 1pm to hear feedback.
Cavanaugh complained that:
- Restriction of the medical cannabis products available at dispensaries licensed by the government to a small list. The law does not have any restrictions.
- The voters approved that any licensed physician could recommend medical marijuana.
- Smoking or vaping medical cannabis is prohibited, while any device for vaporization and inhalation used by the law is allowed.
Cavanaugh’s letter was addressed to Blair state senator Ben Hansen (R), who is the chairperson of the Executive Board.
Since December, Nebraskans have been able to legally possess up to 5 ounces of medical cannabis, so long as they have a health care practitioner’s recommendation. Medical cannabis cannot be purchased legally in Nebraska until licensed outlets are available.
Voters gave the commission until July 1 to issue regulations and Oct. 1 to begin issuing licenses, a deadline that will be missed by at least a week following two commissioner resignations.
The first step to a complaint is to make one.
A state senator can formally challenge a state agency’s regulations and begin a process to receive a written response on how the targeted rules conform to legislative intent and why they’re needed. Nebraskans voted in November to legalize the use of medical cannabis, and 67% voted for the creation of a new regulatory agency.
Hansen refers Cavanuagh’s complaints to Bellevue Senator Rick Holdcroft. Holdcroft is chair of General Affairs Committee and will ask the Medical Cannabis Commission if they are interested in engaging. If asked, the Medical Cannabis Commission would have 60 calendar days to respond.
Holdcroft told reporters on Thursday he hadn’t yet reviewed Cavanaugh’s complaints, but would do so. Cavanaugh serves as vice-chair of the General Affairs Committee.
Hansen says that despite his role as an “intermediary”, he believes Cavanaugh’s complaint to be “legitimate” due in part to the late licensing deadline.
Hansen added: “I think the delay could expose the state to lawsuits, not only because it’s the date that people chose, but also, I believe the delay may open the door for a legal action.” I think this is a valid complaint and we should look into it as a Legislature if necessary.
Cavanaugh recommended pairing his complaint with a Legislative Resolution 226 hearing, an interim report introduced by Cavanaugh and supported by Holdcroft & Hansen. The study was to look at how medical marijuana laws approved by voters are being implemented.
Holdcroft said he plans to invite the commissioners of the ballot initiative in 2024 and the Nebraskans that led it to the hearing to see what could be needed in the legislative session in 2026 to make the program run “the way that we want to do in Nebraska.”
Nebraska judges have legal discretion to strike down any regulation “if it violates constitutional provisions, exceeds statutory authority of the agency or was adopted without compliance with the statutory procedures.”
The lawmakers have upheld the judicial powers this spring. Starting in May any suit of this nature can be brought before any district court and not only Lancaster County District Court.
Commission rules
Included in the proposed regulations is a requirement that only in-state physicians could be part of a “Recommending Health Care Practitioner Directory.” Nebraskan practitioners can only refer their patients to Nebraska licensed dispensaries. Participants would be required to attend annual educational sessions on medical cannabis.
Cavanaugh noted that, while an educational program might be logical, the Legislature is responsible for making this decision. Cavanaugh noted that the Legislature could have created a medical cannabis program with more restrictions this spring, but did not.
Cavanaugh also urged that lawmakers pass a law protecting physicians who prescribe medical cannabis. The executive branch is intensifying its legal pressure, and the legislators failed to do so.
Cavanaugh wrote: “The Commission is not allowed to adopt its definition of marijuana that is stricter than the one contained in law.”
Nebraskans will also have to comply with regulations that restrict their access to certain cannabis products, such as raw flowers, vapes or delta-9 tetrahydrocannabinol THC, which is the most commonly associated part of the marijuana plant. Every 90 days, patients could only consume up to 5 grams (or 141 grams) of delta-9 tetrahydrocannabinol. Five ounces of cannabis is 141g.
Cavanaugh said it would require seven years before a patient could obtain five ounces (or delta-9) of THC. However, the voters have not set THC limits.
Under the regulations, up to four cultivators could each possess up to 1,250 flowering plants at one time as they work with up to four product manufacturers and 12 dispensaries statewide.
The Nebraska Medical Commission will also be holding a public regulatory hearing on Friday, October 15. Written comments are welcome up to 11:00 pm, October 15, by fax (402-471-2814), email or postal mail. [email protected].
Medical and recreational marijuana
Gov. Jim Pillen, who approved emergency regulations and stipulated a cap on the number of plants, will decide whether or not to create a new set of regulations. He said that his appointees would ensure Nebraska’s Cannabis Program remains medical.
Hansen led Legislative Bill 677 this spring with the support of longtime medical cannabis advocates. This was to aid the commission, by making many existing regulations law. Hansen Cavanaugh Holdcroft led multiple forums in which voters stated that they supported recreational marijuana as long as state leaders did not interfere with medical cannabis.
Cavanaugh, who spoke Tuesday, said: “If they fear that recreational cannabis is next, then I think the best way to ensure that voters will take this next step is to frustrate their clear expressed desire for medical marijuana.”
The two resignations on the Liquor Control Commission this Monday, sought and received by Pillen, followed federal public corruption charges unsealed last week against the former executive director of the Nebraska Liquor Control Commission. He has pleaded not guilty.
Three of the three commissioners for liquor also sit on the Medical Cannabis Commission. No commissioner was implicated in the federal indictment.
Holdcroft claimed to be “completely shocked” at the reported behavior of former director. He said that the Liquor Control Commission hired Micah Chaffee in mid-September, who previously worked as a researcher for Holdcroft, and General Affairs Committee. Chaffee is well versed on liquor and cannabis.
He’s a man of the family. He is a man of high morals. Holdcroft said, “I have a lot of respect for his abilities.” “I think with his leadership and the governor’s appointment of some quality commissioners to replace the two that have resigned, I think we should be OK.”
‘The Legislature must act’
On Tuesday next week, it will be expected that the Medical Cannabis Commission votes on the first grower licenses. The time it takes to go from seed-to-sale is likely not until the middle of 2026.
Some lawmakers voted against Hansen’s LB 677 in May because they wanted to wait for legal challenges to play out against the laws, challenges that continue to this date and remain threatened. Nebraska’s Attorney-General is one of those that have threatened to take legal action. Cavanaugh stated that regulatory processes have also increased the legal risk.
Cavanaugh said that other senators wanted the commission more time to take action, but Cavanaugh called it a moot point.
Cavanaugh said: “The Legislature needs to act in order to respect the will of voters.”
Nebraska Examiner was the first to publish this story.
Carlos Gracia is the photographer.