Wednesday, January 12, 2022
In 1996, California became the first state to legalize medical cannabis. Since then, 36 states (and four U.S. territories) have followed suit, keeping pace with rapidly evolving cannabis policies and attitudes. In addition to the widespread legalization of medical cannabis, 18 states, two territories, and the District of Columbia have legalized cannabis for adult use.
As one of 14 states that have not legalized medical cannabis under state law, Tennessee is a minority, even in the South. In fact, five of Tennessee’s neighboring states have legalized cannabis for medical use (Alabama, Arkansas, Georgia and Missouri) or for adults (Virginia). And it also looks like Mississippi is about to legalize medical cannabis (as we’ve written here, here, and here).
Tennessee’s current cannabis policy does not seem to reflect the attitudes of its voters. According to a 2018 survey conducted by Middle Tennessee State University, the majority of Tennessees (approximately 81%) support some form of legalization, with 44% supporting medical use and 37% supporting the legalization of adult use. This widespread popularity has even caught the attention of some Tennessee state officials who are personally opposed to legalizing medical cannabis.
For example, Rep. Bruce Griffey (R-D75) introduced legislation last July that would have required county election commissions to put three non-binding questions on the ballot to ask voters if Tennessee should (1) decriminalize possession. small amounts of marijuana; (2) legalize medical marijuana; or (3) legalize adult marijuana. MP Griffey issued a statement clarifying that while he was personally “against the legalization of marijuana”, his “personal opinion should not dictate” that marijuana should remain illegal under state law if legalization is what Tennessee voters want.
So where is Tennessee now when it comes to medical cannabis? And where could I go? These questions are the focus of this article, which is the first in our series on cannabis in Tennessee.
Wait, does Tennessee already have a medical cannabis program?
Some readers may be surprised to learn that Tennessee technically has a medical cannabis program. Legislation that went into effect in May 2021 allows people with certain qualifying conditions and a doctor’s recommendation to possess cannabidiol oil (CBD) that contains up to 0.9% THC. In particular, Tennessee’s 0.9% THC threshold is three times higher than the 0.3% THC limit for legal “hemp” under federal law (of which we wrote here). Therefore, 0.3 to 0.9% THC oil authorized by Tennessee law qualifies as illegal “marijuana” at the federal level under the Controlled Substances Act.
In practical terms, the Tennessee program is so limited that it has recently changed the status quo. The underlying problem with the program is that it does not anticipate state production of CBD oil containing THC above the federal 0.3% limit. As a result, qualified Tennessee patients must procure their “medical cannabis” oil out of state. The association of this state-owned production ban with the restrictive 0.9% THC limit demonstrates that Tennessee’s current statutory regime is a name-only “medical cannabis program.”
Tennessee Medical Cannabis Commission: An Important First Step
But change may be on the horizon. The same statute that minimally expanded Tennessee’s medical cannabis program also established the Tennessee Medical Cannabis Commission, whose purpose is to “serve as a resource for the study of federal and state cannabis laws.” and the preparation of legislation to establish an effective, patient-centered system.[.]But the statute does not yet “authorize the operation of a medical cannabis program” in Tennessee and “no licenses will be issued for that program … until marijuana is removed from Schedule I of the Federal Substances Act. controlled “.
The statute directs the Commission to “examine federal laws, the effectiveness of the laws and legislation of other states, and the laws and legislation in [Tennessee] related to the medical use of cannabis “, and requires the Commission to consider issues related to many broad categories, such as:
Which patients should qualify for medical cannabis
How patients should apply to receive medical cannabis
What are the respective roles of physicians, professional nurses, and medical assistants in recommending and prescribing medical cannabis?
What are the roles of pharmacists in recommending, prescribing and dispensing cannabis
License and regulation of the “cultivation, processing, labeling, transport, shipping and distribution” of medicinal cannabis
Product safety testing
What is the role of various departments, agencies and state boards in regulating medical cannabis
What is the role of law enforcement in medical cannabis
Taxes and fees for medical cannabis
Develop a “recommended standard of care” for medical cannabis
Patient reciprocity with other states that have legalized medical cannabis under state law
The statute requires the Commission to prepare recommendations on “the best way to establish an effective and patient-centered medical cannabis program”, along with a proposal for legislation that should “create an independent and financially self-sufficient Commission … to manage the program “. The Commission must submit a report containing these recommendations and proposals to the Tennessee Legislature by January 1 of each year. The Commission has already delivered the 2021 report to the Legislature, but it has not yet been made public.
The meetings of the Commission are open to the public and are broadcast live. The next meeting is scheduled for January 28, 2022, at 9 a.m. CT.
Large format questions for the Commission
Given that the Commission’s statutory role is to develop a genuine medical cannabis program based on its analysis of what works and what does not in the current state of medical cannabis, it is crucial that the cannabis industry begin educating the Commission on these points. While there are many questions that the Commission needs to consider in order to develop an effective program, some of the most important are:
Will Tennessee adopt a “limited license” or “open license” regime? Under a limited licensing regime, states authorize a limited number of licenses to grow, process, or dispense cannabis, which are issued following a competitive application process. Under an open licensing regime, states provide licenses to all companies that meet regulatory standards. Examples of limited license states include Alabama (which we wrote about here). Examples of open license states include Oklahoma.
Will there be a social equity component? Social equity provisions in cannabis statutes take many forms. From the perspective of minority-owned companies, the most important types are those that require the state licensing authority to issue a certain number of licenses to these companies (Alabama has adopted this model). More broadly, cannabis statutes in many states provide for the elimination of past cannabis offenses and / or direct cannabis tax revenues in communities affected by the war on drugs.
What will be the conditions for patients to obtain a medical card? The current status of Tennessee allows patients with the following conditions to obtain 0.9% THC oil: (1) Alzheimer’s disease; (2) amyotrophic lateral sclerosis (ALS); (3) cancer, when this disease is diagnosed as end-stage or treatment produces a disease of wear and tear, nausea and related vomiting or pain; (4) inflammatory bowel disease, including Crohn’s disease and ulcerative colitis; (5) epilepsy or seizures; (6) multiple sclerosis; (7) Parkinson’s disease; (8) human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS); and (9) sickle cell disease. It seems likely that the Commission will consider extensions to this list.
Will Tennessee impose a residency requirement on cannabis licensees? Many states only issue cannabis licenses to companies with majority ownership attributable to state residents. Whether these residency requirements go through the meeting of the U.S. Constitution is far from clear (as we wrote here).
Will Tennessee allow for patient reciprocity? Some states, such as Arkansas, allow patients from other states to obtain a visitor’s card that allows them to buy medical cannabis in the state. Other states do not provide for these “visitor cards”.
Will Tennessee authorize a true medical cannabis program before marijuana is canceled at the federal level? This is a guess from anyone. As noted above, Tennessee’s current statute makes the cancellation of federal programming a prerequisite for the expansion of medical cannabis in Tennessee. But the tide of legalization is moving fast, even in the south, and it can be imagined that tax revenues from neighboring states will encourage the Tennessee Legislature to speed up the process if the Washington blockade continues to slow cannabis reform to the next level. federal.
While the timeline for the legalization of medical cannabis in Tennessee seems long, history shows that legalization efforts do not take long to increase speed. The establishment of the Tennessee Medical Cannabis Commission is an important first step and one that the industry hopes will help prevent some of the mistakes its sister states made when those states defended their respective programs.
We will continue to oversee Commission meetings and write about developments in the legal landscape of medical cannabis in Tennessee.
© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 12