Nebraska Sen. Submits Complaint Against Medical Cannabis Commission’s Emergency Regulations 

Nebraska state Sen. John Cavanaugh (D) last week submitted a formal
complaint to the state Medical Cannabis Commission over the emergency
regulations adopted by the commission and signed into law by Gov. Jim
Pillen (R) last month. The complaint contends that the regulations run
afoul of what voters approved and that the commission and governor “have
chosen to override the clearly expressed will” of the public.

“The Nebraska Medical Cannabis Commission has exceeded its statutory
authority in adopting emergency regulations which conflict with both the
voters’ intent and the plain language of the Nebraska Medical Cannabis
Regulation Act and the Nebraska Medical Cannabis Patient Protection Act,
while failing to meet statutory deadlines…” — Cavanaugh in the complaint

In the complaint, Cavanaugh argues that the voter-approved proposal
legalized “all forms of cannabis” for medical use and that the regulations
offer patients only a narrow selection of products, namely oral tablets,
capsules, tinctures, topicals, suppositories, patches, and liquids or oils
for use with an inhaler or nebulizer.

“The regulatory authority given to the commission over registered cannabis
establishments was never intended to restrict delivery of forms clearly
allowed by statute,” Cavanaugh wrote. “The Commission is not free to adopt
its own definition of cannabis that is more restrictive than the definition
contained in statute.”

Cavanaugh called the regulatory ban on products like flower and
concentrates “a transparent attempt to restrict access to medical cannabis
and make it as difficult as possible for patients and caregivers to obtain
it.”

The complaint also argues that the law approved by voters would allow
out-of-state physicians to recommend medical cannabis to Nebraska patients,
but that the regulations allow recommendations from only pre-approved
physicians within the state that have received training, which is outside
the scope of the commission. Cavanaugh indicated he has contacted the state
Board of Medicine in May about the training, but the board “had not had any
communications regarding the issue.”

Further, Cavanaugh says the rule limiting patients to 5 grams of medical
cannabis within 90 days is “contained nowhere in the statute” approved by
voters, which allowed up to 5 ounces for patients.

“[Five] grams is 0.17637 ounces. 5 ounces is 141.748 grams. Under this
limitation, a patient would not even be able to obtain an ounce of cannabis
over the course of an entire calendar year,” Cavanaugh wrote in the
complaint. “It would take seven years for a patient to obtain
the maximum allowable amount of cannabis by statute under these
restrictions.”

Cavanaugh also took aim at the commission missing the October 1 statutory
deadline to begin issuing cannabis licenses, calling the failure “a clear
breach of the Commission’s duty.”

“Lack of adequate planning does not constitute an emergency,” Cavanaugh
wrote in the complaint. “The failure to follow these clear deadlines in
statute create a legal risk that the commission’s actions will be nullified
by the courts.”

Cavanaugh contends that lawmakers were the only body that – with a
two-thirds vote – could amend the law approved by voters and the
commission’s “regulations only serve to make it more difficult to obtain
medical cannabis in an environment where the state has some control and
oversight” and ultimately the restrictions would drive “those who do need
care out of Nebraska despite the fact that this state voted overwhelmingly
in favor of medical cannabis.”

Cavanaugh is asking the General Affairs Committee to hold a hearing on his
complaint.