Nebraska Commission Deviates From Voters’ Will on Medical Cannabis

Nebraska voters backed a licensed and regulated medical cannabis program by a 67% majority in the November 2024 election, but now state-appointed officials are moving forward on regulations that veer from their will.

The Nebraska Medical Cannabis Commission (NMCC) approved a 46-page package of emergency regulations on Sept. 2 that will ban dispensaries from selling raw plant material, such as flower, shake, trim or pre-rolls, or any other product administered by smoking, combustion or vaping. The regulations also prohibit edibles, including any food or drink product that has cannabis baked, mixed or otherwise infused into it.   

In addition, the NMCC is capping the number of business licenses at 12 dispensaries—one per judicial district—four cultivators and four manufacturers. Vertical licensing will not be permitted, meaning an applicant cannot possess a permit for more than one license type.

The NMCC adopted the emergency regulations this week—which now head to Gov. Jim Pillen for approval—to replace a preliminary 19-page package signed off by the governor in June. The shorter version of the rules was set to expire later this month.

Not exactly a friend of cannabis, Pillen opposes adult-use legalization and said during his 2022 campaign trail that he’d only support medical cannabis through Food and Drug Administration approval.

Crista Eggers took issue with the NMCC’s latest regulations. Eggers co-led the state’s legalization campaign as the executive director of the Nebraskans for Medical Marijuana, a nonprofit that sponsored the 2024 ballot initiatives to protect patients and establish a regulatory framework for a commercial marketplace.

Eggers told the Nebraska Examiner this week that the NMCC not only ignored the voters’ will in adopting the emergency regulations, but that the commissioners “shredded” mandates under the citizen-initiated state statute.

“By approving rules that pile on new barriers and unlawfully restrict forms of cannabis, they are dismantling what the people demanded at the ballot box,” Eggers said. “This is a direct assault on patients, families and the democratic process itself. Nebraskans voted for access to medicine. Instead, the commission delivered defiance, obstruction and betrayal.”

Under the Nebraska Medical Cannabis Regulation Act, which voters passed with a 67% majority, the term “cannabis” means all parts of the plant, including concentrated cannabis. Also, the measure specifically calls attention to allowing accessories for vaporizing, ingesting, inhaling or “otherwise introducing cannabis into the human body.”

According to the voter-approved act, “cannabis products means products that are comprised of cannabis, cannabis concentrate, or cannabis extract, and other ingredients, and that are intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures.”

The NMCC’s emergency regulations appear to collide with these voted-mandated provisions.

Under the NMCC’s Sept. 2 emergency regulations, only the following medical cannabis products can be sold at licensed dispensaries:

• oral tablets, capsules or tinctures;
• gels, oils, creams or other topicals;
• suppositories;
• transdermal patches; or
• liquids or oils for administration using a nebulizer or inhaler.

Any product containing artificial flavoring, natural flavoring, or coloring will be banned. Any product containing a synthetic or converted cannabinoid will be banned. And any product that exceeds a 60% THC potency or a 40 milligram THC dose will be banned.

During the NMCC’s Aug. 4 regular meeting, nine individuals commented on the proposed regulations adopted in June (the emergency regulations adopted this week replace and expand upon those).

“A number of speakers opposed prohibitions on smoking or inhaling as a delivery method for medical cannabis, with several saying that smoking provided faster relief of symptoms and that decisions on the delivery method are best left to the patient and the patient’s doctor,” according to the meeting minutes. “Some speakers thought that the commission was contravening to the will of [the] people by proposing restrictions on medical cannabis that were not listed in the approved ballot measure.”

The NMCC’s emergency regulations also require patients to have written orders from their health care practitioners specifying recommended dosages and potency, and the type of cannabis product that can be used: Physicians just can’t recommend the products prohibited by the NMCC.

Cannabis advocacy group NORML’s deputy director, Paul Armentano, called the regulations a “slap in the face” to state voters, comparing it to the Mississippi Supreme Court overturning a 2020 voter-approved medical cannabis legalization initiative, and the South Dakota Supreme Court overturning a 2020 voter-approved adult-use legalization initiative. Those outcomes were both pushed by elected officials who weren’t satisfied with the voters who put them in office.

“In a healthy democracy, those with competing visions on public policy vie for voters’ support and abide by their voting decisions,” Armentano said. “However, it is becoming clear that those who oppose marijuana policy reform would rather take voters out of the equation altogether. Whether or not one personally supports or opposes cannabis legalization, these undemocratic tactics ought to [be a] cause of deep concern.”

In Nebraska, the NMCC first adopted its preliminary emergency rules two days after Lancaster County District Judge Susan Strong dismissed a lawsuit filed by former Republican state Sen. John Kuehn seeking to block the state’s implementation of the voter-approved measure.

Under Nebraska’s voter-approved medical cannabis measure, the NMCC is mandated to begin awarding business licenses no later than Oct. 1, 2025. Under the NMCC emergency regulations, applicants cannot submit more than one application for the same license type during the same application period, nor can they submit applications for more than one license type.

If there are more applications than available licenses, which will likely be the case under the commission’s low license caps, then the commission will select qualifying applicants for a random lottery drawing.

However, once the NMCC begins issuing medical cannabis business licenses, Nebraska Attorney General Mike Hilgers’ office indicated that it would sue the commission in an effort to block the voter-approved program from becoming operational.