Nebraska Bill To Outlaw Most Consumable Hemp And THC Products Is Dead For The Year

“Why do we have to act as if we’re the moral compass for the state? We’re senators. We’re not people’s parents.”

By Zach Wendling, Nebraska Examiner

A legislative effort backed by Nebraska Attorney General Mike Hilgers (R) to ban most consumable hemp and other THC products in the state stalled Friday and will now wait until at least 2026.

State Sen. Kathleen Kauth of the Millard area, sponsor of Legislative Bill 316, asked that her bill be “passed over” on Friday. She waited to do so until just 10 minutes before a two-hour debate would have ended, a time when Kauth would have needed 33 votes to survive a filibuster. After that, she would have needed 25 votes to pass LB 316 and send it to Gov. Jim Pillen (R).

Kauth had the backing of most of the officially nonpartisan Legislature’s 33 Republicans. But Republican State Sen. Ben Hansen of Blair held to his promise to oppose LB 316 if it wasn’t amended to explicitly protect medical cannabis products.

Medical cannabis

Kauth tried to address Hansen’s concerns and would have, said Hansen. But lawmakers ran out of time, because State Sen. John Cavanaugh of Omaha and other opponents successfully blocked LB 316 from being amended.

Hilgers has argued that THC products with delta-8 are already illegal, to which Cavanaugh said Friday that if that’s true, a bill isn’t needed.

Hansen said the current “environment” with Hilgers, who has opposed medical cannabis and has launched a statewide campaign against delta-8, could be “hostile.” Hansen said there was language in LB 316 that could “greatly impact” medical cannabis.

“That’s something I cannot have,” Hansen said. “I think the people passed [medical cannabis] for a specific reason, and I think they are then due to have what they voted for.”

Hilgers helped lead opposition to Hansen’s proposal for clearer medical cannabis regulations and guardrails with 53 sheriffs. His LB 677 fell short 10 votes of advancing on May 20.

Part of Friday’s last-ditch effort featured pressure on State Sen. Jane Raybould of Lincoln, who said she was concerned about “bad actors” in the THC arena but didn’t want to take away the health products some Nebraskans rely on.

Raybould echoed Hansen that lawmakers should allow a new medical cannabis regulatory commission to proceed with directives for those products.

Kauth said multiple times during the debate that her bill had nothing to do with medical cannabis and that more than a dozen amendments from Cavanaugh made it “impossible” to seek the changes needed to keep her bill moving forward.

“No one is going into anyone’s homes and searching their medicine cabinets,” Kauth said. “That is more hyperbole and hysteria from the left.”

Health and safety

State Sen. Jared Storm of David City, who prioritized Kauth’s LB 316 for this year’s session, encouraged Nebraskans not to buy the “garbage” products. He repeated that he would never jeopardize “the health or safety of our citizens of this state, especially children and young adults, for revenue.”

LB 316 would prohibit raw hemp above 0.3 percent tetrahydrocannabinol (THC) of any concentration and with processed hemp prohibit the lesser of 0.3 percent THC on a total weight basis or 10 milligrams per package, effective January 1. The mature stalks of Cannabis sativa and its fiber, oil, cake and any other naturally derived products would not be considered hemp, leaving a narrow legal path for some hemp-based products such as fibers and textiles.

If the bill passed, it would have included a “consumer safe harbor period” through the end of 2025 to give consumers time to discard any “illegal hemp” as newly defined under LB 316. Legal products would have faced an additional 10 percent wholesale tax at the time of purchase.

The new excise tax revenue raised would have been directed toward property tax relief.

Besides protecting the voter-approved medical cannabis laws, Kauth also worked with State Sen. Tom Brandt of Plymouth to offer an “affirmative defense” in court if someone could prove they previously legally purchased what would have become “illegal hemp” under LB 316. That could include a receipt.

‘Good’ and ‘bad’ actors

State Sen. Dan McKeon of Amherst, a Republican who represents a Pleasanton-based hemp company that has offered tours to state senators of its facilities, said there are good actors that lawmakers should be working with.

State Sen. Dan Lonowski of Hastings, a close ally of McKeon, said there are no “good actors.”

Kauth read a letter from Hilgers that had said if LB 316 passed, his office would have announced a pause on new civil enforcement actions against “businesses operating in good faith” for at least 120 days, exactly through the end of 2025. Kauth declined to provide a copy of the letter because LB 316 did not pass.

Kauth and Storm said they now hope Hilgers ramps up his legal efforts against THC stores.

Many hemp-focused businesses said the broad language in LB 316 would shut down their industry, even as supporters said the bill wouldn’t touch them. Kauth said Friday that some businesses that were fighting the changes are essentially “admitting that they are selling dangerous, untested, unregulated, synthetic pot products.”

“They are pushing the health and well-being of their pocketbook above the health and well-being of Nebraskans,” Kauth said. “I’m extraordinarily disappointed that that is where we have come.”

‘We’re not people’s parents’

Cavanaugh, who again led opposition to the bill, said regulations and not a ban were still the best path forward. He said LB 316 would go in the “opposite direction” of economic development for budding businesses who are “good actors.”

His LB 16, to implement regulations on THC products, did not advance from the Judiciary Committee this year, and lawmakers repeatedly rebuffed his efforts.

Cavanaugh repeated Friday that he is “ready, willing and able to work on a regulatory scheme that will actually do this the right way and answer all the concerns that people have.”

State Sen. Terrell McKinney of North Omaha, who also pushed for regulations, said Kauth’s bill could cause more harm than good and that the state should let people be adults.

“Why do we have to act as if we’re the moral compass for the state? We’re senators. We’re not people’s parents,” said McKinney.

State Sen. Margo Juarez of Omaha said she had purchased CBD with hemp in it for her nearly 101-year-old mother, but she didn’t have a receipt for the product.

Cavanaugh said the proposed defense provision only dealt with individuals, so businesses would have needed to destroy or sell all products by September, when the bill, if passed, would have taken effect. If not, business owners would risk “countless felonies,” Cavanaugh argued.

What would be banned?

The debate on LB 316 has seen senators forcefully disagree with what would be banned, with supporters arguing it would only ban “synthetic” chemically modified hemp or THC, while opponents said the bill would stretch to CBD, creams, ointments and most other products.

Part of that is because LB 316 would count the THC level based on all concentrations—delta-8, delta-9, delta-10, etc.—and not just 0.3 percent delta-9 THCc. Cavanaugh and State Sen. Wendy DeBoer of Omaha have said that it could criminalize possessing a gummy as a felony.

Supporters of LB 316, however, say that only chemically modified “synthetic” products would be banned.

Nebraska lawmakers in 2011 already banned “synthetic” marijuana, such as K-2 or spice. Most hemp or other hemp-derived products require chemical modifications, such as heat.

‘We could have stopped it’

State Sen. Tanya Storer of Whitman said that while, as a conservative, she doesn’t think government should be in the way of business or entrepreneurship, government does have a role to protect people “from things that they couldn’t otherwise do for themselves independently.”

“Individuals do not have the capacity to know the processes that go into developing a product. That’s what we have things like the FDA for,” Storer said, referring to the U.S. Food and Drug Administration.

Cavanaugh, McKinney, Raybould and State Sen. George Dungan of Lincoln repeatedly said that was part of the reason why regulations, not a ban, would be better, treating the products similarly to alcohol, tobacco or other drugs.

Kauth said that with lawmakers’ failure to move forward, senators must own that the next time someone dies because of the products, they will know: “We could have stopped it.”

LB 316 will return next year one vote away from passing, with eight minutes to go in the third round of debate, though it’s unclear what amendments might come. Rescheduling would be up to Speaker John Arch of La Vista.

This story was first published by Nebraska Examiner.

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