As Nebraska Lawmakers Take Up Medical Marijuana Implementation Bills, AG’s Office Threatens Lawsuit Over Licensing

A Nebraska legislative committee took up four medical marijuana bills on Monday—including three different plans to implement the state’s voter-approved cannabis law adopted last November as well as a proposal that would forbid all forms of cannabis except for pills and tinctures.

The unicameral legislature’s General Affairs Committee discussed the four  measures and took public testimony at a roughly six-hour hearing, but did not take any formal action on the legislation.

Nebraska voters approved a pair of medical marijuana legalization ballot measures last November—finally realizing the goal of advocates who have pushed to enact the reform multiple times in recent years. One initiative legalized cannabis for qualified patients and caregivers, while the other said the state would create the Nebraska Medical Cannabis Commission to provide “necessary registration and regulation of persons that possess, manufacture, distribute, deliver, and dispense cannabis for medical purposes.”

On Monday, members of the Public Affairs Committee first heard two relatively similar bills on implementing a state regulatory system: LB 651, from Sen. Danielle Conrad (D), as well as LB 677, from Sen. Ben Hansen (NP). Both would allow patients to purchase and possess up to five ounces of cannabis, set up a registry system for patients and license a commercial industry.

A third implementation bill, LB 705, from Sen. Terrell McKinney, also includes social equity licensing provisions and would provide for record expungement and resentencing for people with past cannabis-related criminal records.

Conrad and Hansen each emphasized that medical marijuana had strong support among voters in November, arguing that their legislation would responsibly allow patients and caregivers access to the substance.

“About 70 percent of Nebraska voters voted in support of those measures,” Conrad noted. “That is a resounding consensus in today’s politically fractious and divisive times.”

“The message is clear,” added Hansen. “Nebraskans want legal access to medical cannabis. Now it is our responsibility to ensure that access is safe, responsible, and well regulated.”

At the same time lawmakers are weighing how to implement the new medical marijuana law, however, the state’s attorney general is also trying to undo it. A challenge by Attorney General Mike Hilgers (R) alleges the measures should never have appeared on the state ballot—a matter currently before the state Supreme Court—while another case is pending in Lancaster County District Court.

A representative for Hilgers’s office, Acting Deputy Solicitor General Zachary Pohlman, warned at the hearing that success in court would ultimately void any actions by the legislature to implement the new laws. But he further said the attorney general would file suit in order to prevent the state from licensing any medical marijuana businesses.

“I alluded to a third potential lawsuit in my opening,” Pohlman told the committee, “and that’s the argument that if the commission were to grant a license to an entity to dispense marijuana, that that action would be preempted by federal law.”

“That hasn’t happened yet,” he continued, “but if it were to, the attorney general is prepared to challenge that action as unlawful.”

In response to a senator who asked whether that was a legal threat, Pohlman replied: “We are not threatening anybody.”

Hilgers, along with U.S. Sen. Pete Ricketts, recently wrote an opinion piece in the Omaha World-Herald urging state lawmakers not to pass any marijuana implementation laws. First, as statutes and not constitutional amendments, the voter-approved measures require no action by the legislature to become law, the politicians wrote. And second, the reform faces legal uncertainty in the pending—and threatened—court actions.

“Patience in evaluating the science and its implications for public policy will help promote a safer Nebraska,” Hilgers and Ricketts wrote. “The Legislature should study the law and science of marijuana and slow down before acting on marijuana this session.”

Much of the lawmaker discussion around LB 651 and LB 677 was focused on the pros and cons of medical marijuana legalization itself. Members of the committee also asked a number of basic questions around how much cannabis patients actually need, whether smoking and vaping are acceptable forms of consuming medicine and whether federal law would prevent state action.

Details of all the bills are still being hammered out. Conrad acknowledged that her proposal and Hansen’s overlap considerably, especially following a nearly 100-page amendment introduced by Hansen in recent days.

Both Conrad and Hansen also said it’s important lawmakers take action regardless of Hilgers’s legal challenges.

“I’m not particularly concerned about the action that he has brought forward,” Conrad said of the case, which is now before the state Supreme Court. “He lost significantly and resoundingly at the district court level. There’s very little to show for that litigation, other than a lot of headlines and a lot of taxpayer dollars, and it’s presently on appeal.”

Hansen, for his part, said Hilgers is right that the voter initiatives require no action from the legislature to take effect, but he disagreed that lawmakers have “no duty to act now.”

“The legislature has an obligation to establish regulations, oversight, testing environments and a tax structure for medical cannabis,” the senator said. “Failing to do so would be reckless and a direct disregard for the will of the people.”

Some members of the panel chastised Hansen for introducing a sweeping amendment so soon before Monday’s hearing. Others questioned whether the plan would lead to recreational marijuana in Nebraska.

Sen. Bob Andersen (R) had a number of questions, including about how a proposed 4 percent tax rate was arrived at and whether legalizing medical marijuana would lead to increases in crime and homelessness.

“We’re kind of veering off here a little bit,” Hansen said in response to questions at one point. “I think we’re kind of getting to the aspect of this is going to be recreational marijuana.”

Hansen would “prefer not to” get into the issue of adult-use legalization, he told colleagues. “I prefer to pay attention to what we’re doing here.”

During public comment, Crista Eggers, the mother of a child with epilepsy and the campaign manager for Nebraskans for Medical Marijuana, called it “downright disrespectful to continue bringing out the issue of, ‘Is this going to lead to recreational marijuana?’”

“We have been advocating for a medicine for over a decade,” she told lawmakers. “We have begged and pleaded.” She noted at one point that during her visit to the Capitol alone, her child had already suffered three seizures.

Eggers has separately called Hilgers’s editorial against action by lawmakers “a distraction.”

“The fact that [Ricketts and Hilgers’s] personal views on this issue have turned into actions as elected officials should outrage voters,” she told the Lincoln Journal-Star. “It should outrage them.”

Lawmakers at Monday’s hearing spent far less time considering a competing implementation plan, LB 705.

Asked what sets that proposal apart from the other two, sponsor McKinney replied that his proposal includes social equity provisions to ensure that people from communities most affected by prohibition are able to participate in the legal industry as well as separate sections to expunge past cannabis convictions.

In response to a senator who appeared not to understand the aim of the social equity provision, McKinney explained: “It’s proposing to set up a system where those people who have been negatively impacted by [prohibition] can take advantage of the opportunity once [the regulatory system] is fully implemented.”

While record-sealing and social equity are common elements of cannabis legalization bills in other states, advocates have said it’s unlikely those elements will win support in Nebraska’s unicameral legislature.

A fourth bill heard on Monday—LB 483, from Sen. Jared Storm (R)—would set limits on legal medical marijuana products in the state but would not attempt to further license or regulate a commercial industry.

Specifically, the bill would prohibit smoking, vaping, edibles and other common product form factors, instead allowing only pills and tinctures. Further, products would be capped at 300 milligrams of THC.

LB 483 would also require that certifying physicians are Nebraska residents and licensed to practice in the state.

Storm, who is also a member of the General Affairs Committee, repeatedly suggested that medical marijuana in Nebraska would lead to recreational legalization.

“This is about revenue for the people who sell drugs,” he said. “They want to expand this as much as they can.”

“For me, I think we slow walk this,” Storm continued. “I think that we slow walk it and we get this right, because if we get it wrong, and you let the genie out of the bottle, you’re not getting it back in.”

And while Storm took issue with patients smoking or vaping medical marijuana, he said in response to a question from Sen. John Cavanaugh (D) that he was open to allowing other products, such as nebulizers, suppositories or topicals.

Kyle Jaeger contributed to this report.

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Photo courtesy of Chris Wallis // Side Pocket Images.