Getting into the weeds on medical marijuana in Nebraska, proposed legislative changes

When 71% of Nebraska voters approved the legalization of medical marijuana in November, it was the largest margin of victory for a medical cannabis ballot initiative in any of the 19 states that have legalized it through a voter-initiated measure.

But five months after Nebraska Gov. Jim Pillen signed the ballot measures into law, the future of medical marijuana in the state remains unclear. Without anywhere to buy medical cannabis legally, it remains inaccessible in Nebraska.

The Legislature is considering a bill that would further regulate the industry, and could make significant changes to the voter-approved law, like prohibiting smoking and limiting the eligibility to a list of approved conditions. Multiple court battles, including one set to be heard by the Nebraska Supreme Court, are ongoing and could lead to further changes.

With so much up in the air, Nebraskans are left with questions about the current state and the future of medical marijuana.

Nebraska Public Media’s guide to medical marijuana regulations and legislative proposals seeks to answer some of those questions.

Can medical marijuana be legally obtained in Nebraska?

Medical cannabis may be legal in Nebraska, but it is not accessible. Nebraska Attorney General Mike Hilgers confirmed in a statement that medical marijuana will remain functionally illegal until there is a place for it to be legally obtained in the state.

A narcotics lieutenant with the Omaha Police Department said in a statement that medical marijuana, while legal under state statute, will remain illegal until dispensaries open.

“The Nebraska Medical Cannabis Commission is tasked with drafting regulations, and licensing for dispensaries is expected to begin by Oct. 1, 2025,” the lieutenant said. “Until then, medical cannabis is not yet available for purchase in the state and is still illegal.”

Since marijuana remains illegal under federal law, and because interstate commerce is under the jurisdiction of the federal government, it is technically illegal to transport marijuana across state lines.

What exactly was passed by voters?

When they voted in favor of the two medical marijuana initiatives in 2024, Nebraskans created two new laws: The Nebraska Medical Cannabis Patient Protection Act and the Nebraska Medical Cannabis Regulation Act.

As adopted by voters, the Nebraska Medical Cannabis Patient Protection Act allows medical patients to possess up to five ounces of cannabis with the recommendation of a health care practitioner who determines that “the potential benefits of cannabis outweigh the potential harms for the alleviation of a patient’s medical condition.”

It does not specify a list of eligible conditions, nor does it restrict the ways in which cannabis can be consumed.

The Nebraska Medical Cannabis Regulation Act created the Nebraska Medical Cannabis Commission for the purpose of “providing the necessary registration and regulation of persons that possess, manufacture, distribute, deliver, and dispense cannabis for medical purposes.”

The commission is to be made up of three to five members, with the three members of the Nebraska Liquor Control Commission appointed as ex-officio members. The governor can then appoint two additional members who are subject to confirmation by the Legislature by a simple majority.

The regulatory act also establishes a timeline. By July 1, the commission is expected to establish criteria, rules, regulations and eligibility standards for granting registrations to cannabis establishments. The commission is then ordered to begin granting those registrations no later than Oct. 1.

The statute also instructs the commission to “establish procedures for the governance of the commission” and “acquire necessary offices, facilities, counsel and staff.”

What is the status of the Medical Cannabis Commission?

The three ex-officio members of the Nebraska Medical Cannabis Commission are Bruce Bailey, Harry Hoch Jr. and Kim Lowe. All three serve on Nebraska’s Liquor Control Commission, and none have publicly shared opinions on marijuana legalization.

In late April, Pillen appointed two more members to the commission: Lorelle Mueting, a Heartland Family Service employee who has repeatedly testified against any form of marijuana legalization; and Dr. Monica Oldenburg, an anesthesiologist and former Colorado resident who, in a 2021 legislative hearing, said medical legalization would be “potentially destructive.”

The two appointees have not yet been confirmed by the Legislature, but they are scheduled for a hearing in front of the General Affairs Committee on May 22.

In a legal brief from March, an attorney representing the ex-officio commission members said the commission had no funding of any kind, no office, no computers, no staff and, crucially, “no ability to carry out any duties set forth” in the Nebraska Medical Cannabis Regulation Act. At that time, according to the brief, the commission had not commenced work on regulations or sought to hire employees.

Read the legal brief from the attorney representing the Nebraska Medical Cannabis Commission

However, emails attached as an exhibit to a lawsuit show that staff at the Liquor Control Commission have been at least tentatively exploring software options and scheduling demos with potential vendors. They also reached out to medical marijuana regulators in Missouri, Oregon and Kentucky to ask about their tracking systems. These communications were initiated by existing staff at the Liquor Control Commission, not the Cannabis Control Commission members.

In the proposed budget for the coming fiscal years, the appropriations committee recommended allocating $30,000 annually to the Liquor Control Commission “in order to have flexibility for anticipated additional responsibilities for staff connected to the implementation of medical marijuana in the state.”

Can the Legislature change a voter-enacted law?

Nebraskans possess the power to enact laws and adopt constitutional amendments independently of the Legislature. This is done through the ballot initiative process, which requires a petition to gather a certain number of signatures from voters across the state before the issue is placed on the ballot.

While placing a constitutional amendment on the ballot requires a petition to be signed by 10% of registered voters, placing a state statute on the ballot requires 7% – a difference of about 37,000 signatures. In either case, petition gatherers must collect signatures from 5% of registered voters in 38 of Nebraska’s 93 counties.

Both of the medical marijuana initiatives in 2024 were to enact state statutes, not constitutional amendments.

There is no simple legislative maneuver to reverse or amend a constitutional amendment enacted by the initiative process, making it more immune to legislative intervention. But if two-thirds of legislators are in agreement, they can “amend, repeal, modify, or impair” a state statute enacted by the people.

How is the Legislature seeking to change the regulatory act?

At the beginning of the legislative session, state senators introduced a handful of bills to make changes to the Nebraska Medical Cannabis Regulation Act.

The only bill to gain traction is LB677, introduced by State Sen. Ben Hansen of Blair, a Republican in the officially nonpartisan Legislature. In its initial form, Hansen’s bill made extensive additions to the regulatory framework, but did not specify a list of eligible conditions or restrict smoking cannabis.

The bill instructs the commission to establish and maintain a registry program for patients, and for caregivers who would provide cannabis to patients. Patients would pay a fee of up to $45 for a medical card, which would be renewable every two years.

It would also allow the commission, with the governor’s permission, to appoint or employ additional staff, and an assistant attorney general would be designated to the commission to provide legal services.

The implementation timeline would be slightly delayed by LB677. By Oct. 1, the commission would be required to establish procedures for the issuance and renewal of licenses, qualifications for licensure, requirements for testing cannabis for potency and contaminants, recordkeeping by distributors, sanitary requirements and a host of other regulatory issues. Applications could be submitted beginning on Jan. 1.

The bill initially failed to advance from the General Affairs Committee, making it unlikely that the full Legislature would vote on the bill. But under a compromise amendment called AM1251, the bill advanced on a 5-3 vote and will be considered by legislators in the final days of session.

What changes are made in the amendment?

AM1251 makes two major changes to LB677: It removes smoking as an allowable form of consumption, and it creates a list of eligible medical conditions.

Read the full text of LB677 with AM1251

Both are likely to be major points of contention when the bill is heard by the full Legislature. Under the amendment, patients could still possess up to 5 ounces of medical marijuana, but only 2 of those ounces could be in the form of dried flower. Smoking would not be permitted, but vaping would be.

The eligible conditions under the amendment are:

• ALS (Lou Gehrig’s Disease)
• Autism with frequent self-harm or aggressive behavior
• Cancer
• Chronic pain lasting more than six months that hasn’t responded to non-opioid treatment, in a doctor’s opinion
• Crohn's disease or ulcerative colitis
• Epilepsy or seizures
• Hepatitis C with serious nausea or wasting
• HIV/AIDS
• Huntington’s Disease
• Parkinson’s Disease
• Spinal cord injury or disease with ongoing nerve problems
• Terminal illness with less than one year expected to live
• Tourette’s Syndrome
• Severe nausea or wasting from another serious medical condition
• Severe muscle spasms from multiple sclerosis, spinal cord injury or muscular dystrophy

In this context, “wasting” refers to significant weight and muscle loss associated with severe chronic diseases.

Post-traumatic stress disorder is not included in the list of approved conditions under the amendment, which activists and some state senators have sought to change. On May 6, State Sen. John Cavanaugh of Omaha submitted an amendment to add the condition, which afflicts many veterans, to the list.

A total of 30 dispensaries would be allowed to open statewide, with a maximum of 10 per congressional district.

The amended bill faces opposition from the Nebraska Sheriff’s Association and Hilgers, who called it a “recreational marijuana bill” that would supercharge the black market.

What are the odds LB677 passes the full Legislature?

Advancing out of committee was an important step for LB677, but it’s still an uphill battle. And the bill is likely to undergo more changes before a final vote is held, if one is held at all.

Because LB677 is likely to face a filibuster – a political maneuver to extend debate in hopes of delaying or killing the bill – at each of the three stages of debate, it would need 33 votes at each stage. Amendments can be offered at any time and need 25 votes to be adopted.

The first round of debate typically allows for up to eight hours of discussion before a cloture vote, or a vote to end debate, is taken. The second round allows four hours, and the final round two. If fewer than 33 lawmakers vote for cloture at any of the three stages, the bill will not advance.

Sen. Hansen, speaking at a town hall in early May, said there are some legislators who won’t change their minds. But he encouraged attendees to send their personal stories to their senators in hopes that a few might budge.

What happens if LB677 doesn’t pass?

If the Legislature does not pass LB677, the voter-enacted laws will stand as written.

That might sound like a victory to those who are opposed to the proposed changes, like disallowing smoking and restricting the types of conditions eligible for medical marijuana, but the six-page law enacted by voters does not get into the minutiae of establishing a regulatory framework.

That is largely because organizers did not want to run afoul of the single-subject rule, which says an initiative “may not contain two or more distinct subjects for voter approval in a single vote.” It was a single-subject challenge that got the 2020 constitutional amendment to legalize medical marijuana thrown out by the Nebraska Supreme Court before it could be presented to voters.

In the absence of legislative intervention, Hilgers said the responsibility to establish those kinds of regulations will fall to the Cannabis Commission. A steadfast opponent of any type of marijuana legalization, Hilgers has urged legislators to take no action on LB677 or any other regulations this session.

Hansen said not taking legislative action would likely result in medical marijuana remaining inaccessible. If the executive branch is in charge of the Cannabis Commission, he said, it’s easy to guess “where medical cannabis is going to be in the state of Nebraska, which is nothing.”

“With the lack of funding that we’re going to probably see going toward the medical cannabis board, we will essentially have nothing in the state of Nebraska,” he said. “We do need this bill, otherwise we’re gonna have law enforcement having no idea what is prescriptive and what isn’t. How much somebody can have, what labeling and container can they have, who can prescribe it. All the nuances.”

What about the legal issues?

Hilgers’ argument that the Legislature should hold off on further regulation hinges, in part, on an ongoing lawsuit that is set to be heard by the Nebraska Supreme Court.

Last year, John Kuehn, a former state senator and longtime medical marijuana opponent, filed a lawsuit ahead of the November election seeking to have the petitions thrown out on the basis of alleged fraud on the part of petition circulators and notaries who worked for the campaign. Secretary of State Bob Evnen later joined Kuehn’s lawsuit, despite the fact that his office had certified the signatures.

The case progressed to the first phase of a bifurcated bench trial. In the first phase, the plaintiffs needed to prove the fraud occurred. If the case advanced to the second phase, the burden would shift to the defendants to prove the validity of the signatures on the petition.

During the phase one bench trial, Kuehn and Evnen alleged that the campaign routinely notarized petitions outside of the circulator’s presence, and that some petition circulators engaged in fraud that was so widespread and pervasive that it should call into question the validity of the entire initiative. Two people, a notary and a petition circulator, have been criminally charged in connection with their alleged fraud.

Though Lancaster County District Court Judge Susan Strong did find that 711 signatures on the legalization petition and 826 signatures on the regulatory petition lost their presumption of validity, she still found Evnen and Kuehn were “far short” of proving the disqualification of more than 3,300 signatures needed on each petition to fully invalidate the initiative. The case was dismissed after the first phase of trial.

“[Kuehn and Evnen] must now show that more than 3,463 signatures on the Legalization Petition and more than 3,357 signatures on the Regulatory Petition should not have been counted,” Strong wrote in her 56-page order. “After reviewing the evidence, the Court finds that they have fallen short.”

Kuehn appealed Strong’s ruling, and the Nebraska Supreme Court added the case to its docket. It is not yet scheduled for oral argument. Kuehn and Evnen are asking the state’s high court to reverse the dismissal and remand the case to Lancaster County for the second phase of trial.

Read Hilgers' and Evnen’s brief to the Nebraska Supreme Court

Hilgers has suggested that if the Legislature passes LB677, it could “undercut” his case in front of the Nebraska Supreme Court.

“If we go to the Supreme Court and they could say, yeah, that’s great, Attorney General Hilgers, we agree with you, but the Legislature passed a bill,” Hilgers said at a press conference. “It makes our job a lot more difficult to what we think should be a fair fight in front of the Nebraska Supreme Court.”

Another Kuehn lawsuit, which is still making its way through the Lancaster County District Court, was filed in December and seeks to invalidate the voter-approved statutes by arguing that federal law preempts state marijuana regulation. The defendants in that case have filed motions to dismiss the lawsuit for lack of standing and failure to state a claim, and a hearing on the motions is scheduled for May 20.

Hilgers has also suggested that he will pursue additional litigation if the Medical Cannabis Commission begins licensing dispensaries.