Cultivator Ashley Blackshear sweeps up the clippings of cannabis plants after pruning them in the flower room at Proper Cannabis in Rock Hill, Missouri, in October 2022. Experts say that there will be both opportunities and challenges for marijuana businesses if Nebraskans vote to legalize medical marijuana on Tuesday.
Robert Cohen, St. Louis Post-Dispatch
If Nebraska voters legalize medical marijuana on Election Day, there would be opportunity for marijuana entrepreneurs but also a lot of challenges.Michael Johnson, who lives in Nebraska and is the CEO of the Colorado-based marijuana business Shift, said Nebraska would be late to the medical marijuana market, but that’s an opportunity.“It can be difficult to be a first mover in any space because you don’t have a playbook to offer,” Johnson said. “And so I think Nebraska has a great opportunity to study other state programs, to identify what has worked well and to make a state-run program that’s really healthy.”People familiar with the medical marijuana market said that creating a stable industry in Nebraska is possible if the ballot measures legalizing medical marijuana are approved. However, the medical marijuana market has had supply and demand imbalances in other states, lacks access to typical resources and is surrounded by regulatory uncertainty.
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A budding businessIf medical marijuana is legalized in Nebraska there could be an influx of businesses applying for licenses to sell it, which can mean there are more businesses than consumers need.There is a lot of excitement around the marijuana industry, Johnson said, and that excitement causes a rush of entrepreneurial activity and infusion of capital that, in a market with unlimited licenses, can lead to wasted investment.“A lot of small businesses have gone out of business and the market, generally speaking, is deemed to be not viable from an investor or operator standpoint, simply because of such a dramatic supply glut,” Johnson said.The potential market size for medical cannabis is about 4% of Nebraska’s population by 2030, said Andrew Livingston, the director of Economics and Research at the national cannabis law firm Vicente LLP.
Andrew Livingston, director of Economics & Research at Vicente
COURTESY PHOTO
Livingston said he estimated Nebraska’s market size by analyzing the patients per capita over time of other states where medical cannabis has been legalized, including Arkansas, Missouri and South Dakota.That translates to about 56,000 patients by the end of 2028 and 93,000 by the end of 2030, according to a press release from Vincente LLP. Through 2030, Nebraska is projected to sell $440 million in medical cannabis if voters legalize itA market with a medical cannabis oversupply will right itself after a decade or so in the open market, Johnson said.“Those are the laws of economics, that over time, supply and demand will balance,” he said. “I think that there’s been a lot of economic destruction in those markets, and you can point to markets that have taken a more modest approach.”Johnson pointed to states with a cap on the number of licenses to sell marijuana. He said regulators can play a role in the regulation of the cannabis industry.Not an average businessStarting and operating a medical marijuana business is more difficult than the average business because of potential regulations and the amount of resources accessible to dispensaries.The biggest problem for medical marijuana businesses is that investor capital, bank loans and advertising opportunities are inaccessible, Johnson said.“Lastly, because cannabis is still illegal on a federal level, there’s a fair amount of large Fortune 500 institutions that simply don’t work with cannabis businesses,” Johnson said. “And those are often service providers. That could be insurance, it could be workers comp(ensation), it could be software solutions.”Any business that traffics Schedule I or Schedule II drugs can’t claim any tax credits or deductions on expenses, according to Section 280E of the U.S. Federal Code. Because marijuana is listed federally as a Schedule I drug, medical marijuana businesses wouldn’t be able to claim any deductions like the average business would.The Small Business Administration also is unable to work with medical marijuana businesses because marijuana is not supported on the federal level.Restrictions could also be placed on the number of licenses available to businesses, limiting the businesses selling medical marijuana. Livingston said he personally favors an open market approach to medical marijuana.“So when you have a limit on the number of licenses statewide, one of the major things that that does is it limits new entrepreneurial growth and new competition in the future,” Livingston said.License limits could lead to people having to buy licenses from an existing business in order to operate, Livingston said. If a business closes and the industry needs to adapt in a market without many operators, license limits could impede that process, he said.“That’s kind of an important thing when we look at ‘How do we have a dynamic and flexible industry?'” Livingston said.
Nathan King, of University City, Missouri, smells products with the help of Swade Dispensary consultant Mikey Juen (left) as he shops for medical marijuana in February 2023 in St. Louis. Missouri legalized medical marijuana in 2018 and has since legalized recreational marijuana.
Robert Cohen, St. Louis Post-Dispatch file photo
License and regulationLicense limits and other regulations can impact whether the medical marijuana industry is successful in Nebraska.In Oklahoma, a relaxed licensing process led to an over-saturated market. Livingston said the state was an outlier because it registered patients and businesses faster than any other state and took more of a free-market approach.Adria Berry, the executive director of the Oklahoma Medical Marijuana Authority, said the maximum number of licenses the state had following the passage of State Question 788, which legalized medical marijuana, far exceeded the amount needed given the state’s population.
Adria Berry, executive director of the Oklahoma Medical Marijuana Authority
COURTESY PHOTO
“It was doomed from the beginning,” Berry said. “The approach that was laid out in 788, it did not set up the industry for success. A careful approach to licensure is needed if you want to set the industry up for success.”The Oklahoma medical cannabis market was oversaturated and was infiltrated by criminals because of the ease of licensure, Berry said.“They were able to come in and hide behind the license granted to them by our agency, OMMA,” Berry said. “And so it’s been a cleanup project for the past three years that I wouldn’t wish on any other state.”The number of dispensaries started falling in 2023 after years of growth, according to OMMA’s website. The number of patients started falling in 2022.Since the legalization of medical marijuana in Oklahoma in 2018, OMMA has implemented a seed-to-sale program like many other states in addition to cracking down on bad actors in the market. The agency uses a tracking program for recalls and for comparison during inspections, Berry said.Luke Niforatos, the Executive Vice President of Smart Approaches to Marijuana Action, which advocates against marijuana, said lawmakers should take action if the initiatives pass.“If the ballot measure passes, lawmakers should immediately take proactive steps to enact strict potency caps, require products to carry warning labels and expand educational resources to ensure young people know the dangers associated with these drugs,” Niforatos said in an email.In Nebraska, a commission would be in charge of regulating the potential industry and how many licenses are available and who gets them.According to ballot Initiative 438, a commission would decide eligibility standards for registrations no later than July 1, 2025, if the initiative passes. The commission would then begin granting applications by Oct. 1, 2025.The commission would include three members of the Nebraska Liquor Control Commission and the governor could appoint two other members, who would need to be confirmed by the Legislature.Johnson said he wants to be a resource for lawmakers when it is time to decide what Nebraska’s medical cannabis market might look like. When asked if he would expand his business to Nebraska, he said rule-making could determine if operating in Nebraska would be a good opportunity.“And so I will need to see how the rules ultimately get developed to determine whether or not it would be profitable to operate in the space,” Johnson said.
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