Tag: Mississippi

Looking into Our (Slightly Hazy) Crystal Ball: What Will the Mississippi Cannabis Market Look Like?

When you do what we do, you get a lot of calls and a lot of questions. Many of the calls and questions are not fruitful. Quite honestly, some of the calls are from folks whose interest in and experience with cannabis is, we suspect, on a purely personal and leisurely level. In the words of Hyman Roth, this is the business we’ve chosen.

But one legitimate question we’re often asked is what we think the cannabis market will look like in Mississippi. And, more specifically, whether Mississippi’s new medical cannabis regime will be similar to the one in Oklahoma.

It’s a loaded question, and one we suspect many questioners don’t fully appreciate. On the one hand, Oklahoma’s medical cannabis program has been compared to the Wild West. At last count, there were more medical cannabis dispensaries than liquor stores or supermarkets in the state. Many have concluded that this is a bad thing and/or that the program is a failure. Others have deemed the program a triumph of capitalism, a survival-of-the-fittest trial where only the “best” will survive.

As is often the case, we think the answer is probably somewhere in the middle.

On the one hand, the obvious and primary similarity between the programs is the absence of an expressed cap on the number of licenses available. While most states limit the number of licenses available, neither Oklahoma nor Mississippi does so. Many believe this feature will lead to Mississippi following the lead of Oklahoma in terms of the proliferation of dispensaries throughout the Magnolia State.

On the other hand, there are a number of differences between the two states and their statutes that indicate to us that Mississippi’s regime will differ in several important ways – ways we are seeing play out now. First, while the license fee for a dispensary in Oklahoma is $2,500, the fee in Mississippi is $25,000, 10 times the amount. And that amount is owed annually and is in addition to the initial $15,000 application fee. As a practical matter, and for better or worse, this feature alone should significantly cull the number of dispensaries because it provides a substantial barrier to entry into the industry.

Second, there may be significantly fewer locations available to open a dispensary in Mississippi than one would expect due to several geographic-limiting features of the law. Initially, localities have until May 3 to opt out of the medical cannabis regime, and several cities have already done so. Also, dispensaries cannot be located within 1,000 feet of any church, school, or daycare facility. For those unfamiliar with Mississippi, it may be tough to find anywhere in the state that isn’t within 1,000 feet of a church. Even more, the law forbids one dispensary from being within 1,500 feet from another dispensary, and dispensaries are only permissible in commercially zoned areas.

Third, the cannabis industry examining the Mississippi market will have the benefit of having lived through the Oklahoma experience. This is likely to minimize the “goldrush” mentality seen in Oklahoma’s early days. Instead, look for larger players to let the dust settle and come in looking to acquire operators who proved successful breaking out of the initial melee.

Conclusion

It seems possible that, at least in the early years, the Mississippi medical cannabis regime may more closely resemble Oklahoma than a state like Florida with strict limitations on the number of licenses. But our prediction is that certain aspects of Mississippi law and culture will lead to less of a free-for-all at the outset, hopefully leading to a more efficient and more orderly transition to a rational cannabis market in Mississippi.

Article By Whitt Steineker and Slates C. Veazey of Bradley Arant Boult Cummings LLP

For more cannabis legal news, click here to visit the National Law Review.

© 2022 Bradley Arant Boult Cummings LLP

Mississippi Enacts Medical Marijuana Law

Mississippi Governor Tate Reeves signed legislation legalizing medical cannabis on February 2, 2022. Known as the “Mississippi Medical Cannabis Act”, the law permits the use of medical cannabis to treat certain debilitating medical conditions including cancer, Parkinson’s disease, Huntington’s disease, muscular dystrophy, HIV/AIDS, hepatitis, ALS, Crohn’s disease, ulcerative colitis, sickle-cell anemia, Alzheimer’s disease, dementia, post-traumatic stress disorder, autism,  cachexia or wasting syndrome, chronic pain, severe or intractable nausea, seizures, severe and persistent muscle spasms, among others.  The law was effective immediately upon signing by the Governor, although medical cannabis will not become available for months.

Medical cannabis products will include cannabis flower, cannabis extracts, edible cannabis products, beverages, topical products, ointments, oils, tinctures and suppositories.

The medical cannabis law contains many favorable provisions for employers.  Specifically:

  1. Employers are not required to permit or accommodate the medical use of medical cannabis, or to modify any job or working conditions or any employee who engages in the medical use of cannabis, or seeks to engage in the medical use of cannabis;
  2. Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment as a result, in whole or in part, of that individual’s medical use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis;
  3. Employers are not prohibited from establishing or enforcing a drug testing policy;
  4. Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.
  5. The law does not interfere with, impair or impede any federal requirements or regulations such as the U.S. Department of Transportation’s drug and alcohol testing regulations;
  6. The law does not permit, authorize or establish an individual’s right to commence or undertake any legal action against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis;
  7. Employers and their workers’ compensation carriers are not required to pay for or to reimburse an individual for the costs associated with the medical use of cannabis;
  8. The law does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code Section 71-3-201 et seq.;
  9. The law does not affect, alter or otherwise impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code Sections 71-3-7 and 71-3-121;
  10. The law does not authorize an individual to act with negligence, gross negligence, recklessness, in breach of any applicable professional or occupational standard of care, or to effect an intentional wrong, as a result, in whole or in part, of that individual’s medical use of medical cannabis;
  11. The law prohibits smoking and vaping medical cannabis in a public place or in a motor vehicle;
  12. The law prohibits operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, motor boat or other conveyance in a manner that would violate state or federal law as a result, in whole or in part, of that individual’s medical use of medical cannabis; and,
  13. The law does not create a private right of action by an employee against an employer.

Mississippi employers should review the law to determine whether any revisions to drug and alcohol testing policies or other workplace policies will be necessary.

Article By Kathryn J. Russo of Jackson Lewis P.C.

For more cannabis legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

Mississippi Sued Over Plant-Based, Cell-Based, and Insect-Based Meat Labeling Law

Like countless other states, earlier this year, Mississippi passed SB 2922, which stipulates that cell-based, plant-based, or insect-based foods cannot be labeled as “meat” or “a meat food product” (e.g., “hamburgers,” “hot dogs,” “sausages,” “jerky”, etc.). Specifically, SB 2922 amended Section 75-35-15(4) of the Mississippi Code to state “[a] food product that contains cultured animal tissue produced from animal cell cultures outside of the organism from which it is derived shall not be labeled as meat or a meat food product. A plant-based or insect-based food product shall not be labeled as meat or a meat food-product.” Such products still run afoul of the law even if the labels include claims like “100% vegan,” “plant-based,” or “meatless.”

SB 2922 came into effect on July 1, 2019. On that same day, vegan “meat” producer, Upton’s Naturals Co. and the Plant Based Foods Association (PBFA) filed suit in federal court against Mississippi’s Governor and Commissioner of the Department of Agriculture and Commerce arguing that the label restrictions violate their First Amendment right to free speech, among other claims. Upton’s and PBFA are seeking a declaratory judgment that SB 2922 violates the First and Fourteenth Amendments to the U.S. Constitution, a preliminary injunction prohibiting enforcement of SB 2922 throughout the duration of the litigation, a permanent injunction, and an award of nominal damages in the amount of $1.00.

Mississippi’s Department of Agriculture and Commerce, along with the state’s cattle and poultry associations, supported the state law. Indeed, in response to the lawsuit, the Department said it has a “duty and obligation to enforce the law” and that it wanted to ensure the consumer has “clear information on the meat and non-meat products they purchase.” However, supporters of the lawsuit, like the Good Food Institute, argued that “Mississippi is acting as word police” and that the law is a “slippery slope” that could open the door to restrictive labeling.

© 2019 Keller and Heckman LLP
For more on food regulation & labeling, see the National Law Review Biotech, Food & Drug law page.

Mississippi Has a Passed a Lottery Bill: Now What?

On August 31, 2018, Governor Phil Bryant signed legislation authorizing a lottery, removing Mississippi from the list of states without a lottery (now down to five jurisdictions).

So, when will Mississippians be able to buy a lottery ticket? Through close analysis of the statute and anticipated procedure, it is possible to get some sense of the potential timeline.

The bill establishes the Mississippi Lottery Corporation, run by a five-member Board of Directors. The Board members are appointed by the Governor with the advice and consent of the Mississippi Senate. Once confirmed, the Board members will have five-year rotating terms, with no member able to serve more than two terms.

The Board is authorized to hire a full-time President of the Corporation to oversee the day-to-day affairs of the lottery, subject to the approval of the Governor. Once constituted, the Board will determine the process for solicitation of applicants for President and make a selection subject to the Governor’s approval. This process should take several months, even under the best of circumstances.

The appointment and hiring process will be closely monitored by both the press and the public. All meetings of the Board are subject to the Mississippi Open Meetings Act. All records of the Corporation are deemed public records and thus open to public inspection, subject to certain statutory exceptions.

Once the President is selected, he or she will begin to staff the Corporation. All employees of the lottery will be subject to background investigations prior to hiring, and certain senior level administrative personnel must be investigated by the Mississippi Department of Public Safety. No person who has been convicted of a felony, bookmaking or other forms of illegal gambling, or a crime involving moral turpitude may be employed by the corporation. This investigation and vetting process will be time consuming and lengthy, and will delay all hiring several months.

Prior to any operations or procurements, the Board must adopt rules and regulations governing lottery operations in Mississippi. Once retained, staff will draft and revise proposed lottery regulations – another process that could take several months.

By law, the corporation has the option to purchase, lease or lease-purchase necessary goods or services. While the corporation is not able to contract out the total operation and administration of the lottery, it may make procurements for lottery game design, lottery ticket distribution to retailers, supply of goods and services, advertising and the like.

The Board must approve “major procurements”, which are for items, products or services of $1,000,000 or more, including major advertising contracts, annuity contracts, prizes, products and services unique to the lottery, and may enter into such contracts only after a formal bidding process. In bidding, the corporation may do its own procurement or may utilize the services of the Department of Finance and Administration, the Department of Information Technology Services, or other state agencies. Bidding and service procurement will be another time-consuming process; unsuccessful bidders may litigate over not being selected, resulting in even further delays.

Finally, the corporation must investigate, select and enter into agreements with hundreds of lottery retailers. The legislation sets minimum standards for such retailers, and it specifically authorizes Mississippi casinos to act as lottery retailers. This retailer investigation and retention process could also take months.

So, even with a lot of luck, the first Mississippi lottery ticket will likely not be sold until the last quarter of 2019 or first quarter of 2020.

 

© 2018 Jones Walker LLP
This post was written by Thomas B. Shepherd and Zachary W. Branson of Jones Walker LLP.
Read more about Mississippi legislation on our Mississippi Jurisdiction page.

Mississippi Gaming Commission’s Special Interim Commission Meeting: September 14, 2017

The Mississippi Gaming Commission held a Special Interim Meeting on Thursday, September 14, 2017, at 10:00 a.m. in the Biloxi office of the Mississippi Gaming Commission. Executive Director Allen Godfrey, Chairman Al Hopkins, and Commissioner Jerry Griffith were in attendance. The following matters were considered:

Riverboat Corporation of Mississippi d/b/a Golden Nugget Biloxi Hotel and Casino received approval of the following:

  1. Registration of Golden Nugget, Inc. as a Holding Company of Riverboat Corporation of Mississippi

  2. Registration of Landry’s Gaming, Inc. as a Holding Company of Riverboat Corporation of Mississippi

  3. Transfer of the Equity Interests or Securities of Riverboat Corporation of Mississippi

  4. Pledges of Equity Interests or Securities in Connection with the Credit Facility

  5. Imposition of Equity Restrictions Including Negative Equity Pledges in Connection with the Credit Facility

These approvals were in connection with a restructuring of the ownership of the Golden Nugget companies in order to facilitate the acquisition of the Houston Rockets NBA basketball team.

This post was written by Thomas B. Shepherd & Christopher S. Pace  of Jones Walker LLP © 2017
For more legal analysis go to The National Law Review

Federal District Court in Mississippi Provides Good Discussion of Negative Corpus from National Fire Protection Association (NFPA) 921

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The United States District Court for the Southern District of Mississippi recently handed down its opinion in Russ v. Safeco Insurance Company of America, 2013 WL 1310501 and the opinion provides a good example of the 2011 change in NFPA 921 commonly known as the negative corpus.  In Russ, plaintiff was an insured of Safeco Insurance Company at the time he suffered a fire loss for property located in Ovett, Mississippi.  Safeco denied the claim asserting various defenses to coverage, such as plaintiff’s failure to submit to an EUO and that the fire loss was incendiary.  The court had before it several competing motions, including plaintiff’s motion to strike Safeco’s origin and cause expert, primarily on the basis that the investigator’s initial and addendum report conflicted and for the investigator’s alleged failure to follow NFPA 921.

The court set forth in its analysis that NFPA 921 has “established guidelines and recommendations for the safe and systematic investigation or analysis of fire and explosion incidents.  It even cited the 8thCircuit opinion previously reported on this blog, Russell v. Whirlpool Corp., 702 F.3d 450, 454 (8th Cir. 2012).  However, the court also stated that reliance on a methodology other than NFPA 921 does not necessarily render an expert’s opinions, per se, unreliable.  Schlesinger v. United States, 212 WL 407098 (EDNY 2012)  Although the court seemed to recognize that an expert could rely on methodology other than NFPA 921, it found that NFPA 921 was applicable to the Safeco expert’s opinions because “an expert who purports to follow NFPA 921 must apply its contents reliably.”  In other words, this court believed that you did not necessarily have to follow NFPA 921, but if an expert did choose to utilize it, the investigator would be required to follow it in toto.

The court went on to provide a good discussion of the history of the negative corpus which began in 1992.  Negative corpus was initially used to deem a fire incendiary by ruling out the possibility of any accidental cause.  However, in 2011, the NFPA rejected the use of the negative corpus, finding that the process was not consistent with the scientific method.  The court sided with approval in NFPA 921, Section  18.6.5 (2011 Ed.) stating “it is improper to base hypotheses on the absence of any support of evidence . . . that is, it is improper to opine a specific ignition source that has no other evidence to support it, even though all other hypothesized sources were eliminated.”

Applying this rationale to the facts of the case, the court found that no foundational evidence or specific facts such as eye witness testimony or the finding of an accelerant were cited by Safeco’s expert in support of his conclusions. Instead, the investigator simply speculated that the fire was probably caused by human involvement due to the absence of supportive evidence for certain accidental causes.

This case can be used as a good example of how to effectively use NFPA 921 even in jurisdictions where a court has not deemed NFPA 921 the standard.  It can still be argued that if NFPA 921 is utilized, then it has to be used for all of the principles it contains.  In other words, an expert should not be allowed to adopt some NFPA 921 provisions and feel free to disregard others.  It is also a good example of how to utilize negative corpus and its inconsistency with the scientific method to limit an origin and cause expert’s opinions.

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