Cannabis cultivation laws in the South: A first look

07.31.19

Late last year, President Trump signed the Agriculture Improvement Act of 2018 (commonly referred to as the “Farm Bill”) that legalized hemp cultivation under federal law. With the Farm Bill’s recent passing, several state and federal laws regarding agricultural growth of cannabis-based products were in conflict.

This post identifies recent legislation to legalize the use and cultivation of cannabis-based products for medical use. This survey’s scope is limited to legislation introduced in Tennessee and its neighboring eight states; however, this post focuses on five states — Arkansas, Georgia, Kentucky, Mississippi, and Missouri — with the rest to follow in a subsequent post.

1. ARKANSAS

In 2016, Arkansas voters approved the Arkansas Medical Marijuana Amendment (“Issue 6”), which permitted the use of medical marijuana for certain medical conditions. Since passing, Issue 6 has experienced significant implementation delays due to challenges surrounding its cultivation licensing process.

Issue 6 specified that the Medical Marijuana Commission would grant four to eight cultivation facility licenses. After receiving multiple applications, the Commission reviewed, ranked and selected its top five applicants. One of the applicants, who ranked below the five selected cultivators, filed an injunction to prohibit issuing the licenses, arguing that the selection process was unconstitutional. The Arkansas Circuit Court granted the injunction because the selection violated due process. On appeal, the Arkansas Supreme Court reversed and held that the Commission’s authority was sufficient to determine the cultivation license selection procedures.

Due to these legal challenges, the law was not implemented until early this year.

2. GEORGIA

In mid-April, Governor Brian Kemp signed Georgia’s Hope Act (HB 324) that permitted the possession, production, manufacturing and dispensing of low-THC content oil for medical purposes. The Act established two types of production licenses and will permit six producers, including two universities, to cultivate cannabis oil. Class 1 licenses limit indoor cultivators to 100,000 square feet while Class 2 licenses limit outdoor cultivators to 50,000 square feet of growth.

In addition to the growth limitations, both Classes must meet the following requirements:

• Be incorporated or formed in Georgia.
• Acquire the requisite capital requirements established by law.
• Establish a written chain of custody, tracking system, and security plan.
• If selected, be operational within twelve months of selection.
• Obtain letters of support from local government entities where the facility will be located.

The Act also prohibits licensees from operating within 3,000 feet of a school, church, or synagogue and from transferring license ownership within five years of issuance.

3. KENTUCKY

Legislators introduced HB 136 that would permit medical cannabis use; however, after passing through House Judiciary Committee, the bill was tabled until the 2020 session, leaving many of the bill’s details unclear.

4. MISSISSIPPI

In 2019, Mississippi legislators introduced a series of medical marijuana bills that failed in committee. Both SB 2358 and Senate Concurrent Resolution No. 537 were introduced to legalize medical uses of marijuana. One of the more interesting bills, HB 122, would have permitted Mississippi farmers to cultivate marijuana to sell as a commodity to out-of-state vendors where marijuana is legal. However, other initiatives to legalize medical marijuana, such as petitions to place the issue on statewide ballots, are gaining support. This mechanism has been successful in Arkansas and Missouri and could be a successful initiative in Mississippi.  

5. MISSOURI

In November 2018, Missouri voters legalized medical marijuana through Amendment 2, which established a constitutional right for patients with qualifying conditions. Amendment 2 permits both large-scale and personal cultivation. Qualifying patients may obtain a one-year identification card permitting the cultivation of six plants exclusively used by the patient. Personal cultivation must take place in an enclosed, locked facility equipped with security devices permitting access only to the patient and his or her caregiver. 

Large-scale cultivators are subject to extensive regulation including quantity limitations, lighting source limitations, facility location in relation to schools and places of worship, and entity license quotas based on ownership or management. Unlike many bills in neighboring states, local governments cannot enact ordinances prohibiting cannabis cultivation, processing, dispensing, or transportation. Local governments, however, retain authority to pass ordinances that restrict the time, place, and manner of operation of these facilities. The Missouri Department of Health and Senior Services recently announced that it plans to grant as many as 10 licenses for medical marijuana testing and at least 60 commercial growing licenses that are intended to accumulate large revenue sources from application fees and out-of-state investors.