Tony Barragan was in Chicago when he got a text message from his lawyer telling him the Mississippi Supreme Court had announced its verdict in a challenge to the state’s medical marijuana initiative.
By a 6-3 decision, the Supreme Court struck down the medical marijuana program that had been supported in November by an incredible 73.3% of voters, all based on a technicality in the signature-gathering process.
“I was waiting on him to text me back and say, ‘I’m just kidding,’” Barragan said of that May afternoon. “But my phone was just silent.”
A couple messages back and forth confirmed the news: the medical program, with licensing expected to begin in the summer, was now on indefinite hiatus. Throughout the state, hopeful entrepreneurs like Barragan, as well as legal experts, activists and expectant patients, were shocked.
“I was incredulous,” recalled Mark Henderson, a local beer pioneer who was in the early stages of opening a cannabis testing lab. “The Supreme Court had basically decreed that the Legislature’s inaction can invalidate a constitutionally held right. That’s just ludicrous.”
Emanuel D. Williams, executive director of the Mississippi Delta Medical Marijuana Association, called the Supreme Court decision “unfathomable.”
“To have the court come in and do that, it was quite a blow,” he said.
Tony Barragan recently broke ground on what he hopes will be a medical marijuana cultivation and manufacturing facility once the state passes a new legalization bill. Photos courtesy Tony Barragan.
Public Outcry
The Mississippi Supreme Court ruled the state’s initiative process is outdated because it requires an equal number of signatures from five congressional districts, yet Mississippi has only had four congressional districts since 2000, due to its flat population growth. The ruling struck down both the medical marijuana initiative and the initiative process itself.
Although multiple citizen-led ballot initiatives have been put before voters and passed into law in the past 20 years, Initiative 65, the medical marijuana legalization bill, was the first to be challenged in court.
“Whether with intent, by oversight, or for some other reason, the drafters of [the initiative process] wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress,” the court concluded.
The ruling was met with public outcry for overturning the will of the people as Initiative 65 passed with nearly three-quarters of the vote, including a majority of the vote in all 82 of Mississippi’s counties.
Initiative 65 would have created a comprehensive medical marijuana program that was patient-friendly and gave businesses wide latitude where and how they could operate, somewhat similar to Oklahoma’s medical program. Local jurisdictions were prohibited from banning medical marijuana operations or creating onerous zoning restrictions, and the state was not allowed to cap the number of licenses issued. Vertical integration was allowed, but not mandated, and the state was required to begin issuing patient ID cards and business licenses by August 15.
The fate of medical marijuana in Mississippi now rests with the 110 Republicans, 61 Democrats and two independents who currently make up the state’s Senate and House of Representatives.
Republican Governor Tate Reeves — an outspoken opponent of Initiative 65 before the election — has pledged his support to uphold the will of the voters. Legislative talks are ongoing, but proponents of Initiative 65 fear lawmakers will constrict the program by limiting licenses, allowing local bans or tethering patients to a single dispensary.
“There’s a substantial amount of risk now,” said Henderson. “The ballot initiative was effectively a libertarian bent on regulating medical marijuana. And when things go through the legislature, it allows for money to show up and have an undue influence on the regulatory framework.”
Henderson said his major concern is the limiting of licenses, which creates a small number of very large operators, limiting the size of the market and fundamentally changing the economics of the cannabis industry in the Magnolia State.
Although medical marijuana is on hold at the moment, Williams said it’s not time to simply wait and see. He’s encouraging members of his trade group to do all the little things they can to prepare for the legal market, from registering their business name to designing company logos.
He’s also actively engaging lawmakers, “making sure the voices of the people of this great state are heard.”
Williams said it’s important to keep in mind the two objectives for the medical program: One is to provide economic revitalization for the state of Mississippi, but perhaps more importantly, to provide treatment for those suffering from chronic ailments.
Rudy Letellier, who owns two pharmacies and plans to apply for three dispensary licenses, remains optimistic that lawmakers will pass a medical marijuana bill and will keep the language similar to that of Initiative 65.
“They know what the people want, so they know if they don’t do it, they might be voted out,” Letellier said.
CBD products are the closest thing Mississippians have to legal medical marijuana right now.
Soldiering On
Barragan had a lot of time to think about the circumstances during his nine-hour drive from Chicago back to Oxford, Mississippi.
While hundreds, if not thousands, of entrepreneurs in Mississippi had their cannabis plans thrown into limbo, Barragan decided to soldier on.
“On my way back, I knew that I was not going to stop,” he said. “I had made up my mind. Pick your chin up and let’s go.”
Barragan, who has been in the restaurant industry for almost 20 years, currently owns two Hemp Ville CBD stores in Mississippi. In early July, he broke ground on a cannabis cultivation and manufacturing facility in Batesville. He has also leased two retail spaces with plans for medical marijuana dispensaries.
He plans to keep his CBD stores open and independent, because some of his customers may not qualify for medical marijuana cards. Hybrid Relief will be his marijuana-specific enterprise.
“We’re rocking and rolling,” he said. “We know there’s going to be a program. We just don’t know how soon.”
Barragan worked with a site selector to ensure his buildings would be located in areas zoned for cannabis and compliant with likely state regulations. Even if the state requires dispensaries to be at least 2,000 feet away from schools or parks — double what most states require — Barragan said he will still be good.
“If you can’t put it where I’m at, in a shopping center, man, where are you going to put it?”
Back Burner
Some businesspeople had invested capital, others just time and energy or hopes and dreams. While some are charging forward, others have completely halted. All are hopeful this is just a temporary setback, but anxious to see what the much-anticipated new law looks like — and when the changes will take effect.
Henderson had teamed up with Clifton Osbon and other investors to start a testing lab company, setting up a licensing agreement with the California-based Steep Hill Labs to operate the company’s Mississippi branch.
Henderson and his wife co-founded Lazy Magnolia Brewing Co., the first legal brewery in Mississippi since Prohibition, while Osbon is a pharmacist involved in a number of health care startups. Both are accustomed to working in highly regulated industries with a focus on safe products for consumers.
“Obviously all of that is kind of on the back burner now since we’re awaiting some action from the Legislature,” Osbon said. “I get asked every few days by a prospective medical marijuana patient or a family member, ‘Hey, Cliff, when are we going to have a program?’ And my response is always that I just don’t know. I hope it’s soon.”
Letellier hears the same questions at the two pharmacies he owns.
Fortunately, Letellier said, he hasn’t spent much money getting prepared for the medical marijuana program, but he plans to apply for three retail dispensary licenses.
“Every day customers come in asking when the pharmacy will be able to carry medical marijuana,” he said. Patients are looking to treat chronic pain, seizures, sleep problems and even autism with cannabis. “It’s a wide mix of people who want it.”
Needless Suffering
While business interests may take center stage, lawmakers and advocates cannot overlook the patients who need cannabis and were expecting the program to start this summer, but remain trapped underneath the state’s current, arcane drug laws.
“It’s a shame to watch people suffer needlessly,” Osbon said. “It really should be a burden on anyone’s conscience that people are suffering needlessly when we do have this therapeutic option.”
Osbon said he had a family member who died from a brain tumor and thinks medical marijuana could have alleviated some of the pain and misery.
“Now we can only sit and hope that our Legislature gives us a good, workable program so that the next person with a brain tumor doesn’t have to suffer like my family member did,” he said.
As the owner of two CBD stores, Barragan said it’s the closest thing people can get to medical marijuana right now in Mississippi.
“I see these people every single day, and I know they are getting help from this product because they are returning customers and they tell me their stories,” Barragan said. “What saddens me is that there are some patients out there really need medical marijuana and they can’t get it.”
And the bottom line, he added, is that Mississippians voted for medical marijuana, so lawmakers “need to get it together and start giving these people the option.”