LINCOLN, Neb. (Nebraska Examiner) – A state lawmaker is formally challenging regulations from the Nebraska Medical Cannabis Commission that he says “override the clearly expressed will of Nebraska voters.”

A Thursday complaint led by State Sen. John Cavanaugh of Omaha, a lawyer, narrows in on a handful of issues Cavanaugh cites in emergency regulations passed by the commission this summer. Commissioners hope to make the regulations final and have scheduled a 1 p.m. public hearing at the Nebraska State Office Building in Lincoln on Oct. 15 to receive feedback.

Among Cavanaugh’s complaints are that the regulations would:

• Restrict the availability of medical cannabis products that could be sold at licensed dispensaries to a narrow list, while the law has no restrictions.
• Only allow in-state health care practitioners to recommend medical cannabis, while voters approved allowing any physician to do so.
• Prohibit smoking or vaping of medical cannabis, while the law expressly allows any device used for vaporization or inhalation.

“All without the benefit of a public hearing or public scrutiny, the commission and the governor have chosen to override the clearly expressed will of Nebraska voters,” Cavanaugh wrote to State Sen. Ben Hansen of Blair, chair of the Legislature’s Executive Board.

Since December, Nebraskans have been able to legally possess up to 5 ounces of medical cannabis, so long as they have a health care practitioner’s recommendation. But without licensed establishments, medical cannabis can’t yet be legally purchased in the state.

Voters gave the commission until July 1 to issue regulations and Oct. 1 to begin issuing licenses, a deadline that will be missed by at least a week following two commissioner resignations.

Complaint is first step

A state senator can formally challenge a state agency’s regulations and begin a process to receive a written response on how the targeted rules conform to legislative intent and why they’re needed. In November, 71% of Nebraska voters voted to legalize medical cannabis and 67% of voters voted to create the new regulatory commission.

Hansen will refer Cavanuagh’s complaint to State Sen. Rick Holdcroft of Bellevue, chair of the General Affairs Committee, who will consider requesting the Medical Cannabis Commission to engage. The commission would have 60 days to respond if requested.

Holdcroft said Thursday he had not yet seen Cavanaugh’s complaint but would review it. Cavanaugh is vice chair of the General Affairs Committee.

Hansen, who noted he serves as only an “intermediary” in the complaint process, says he does feel Cavanaugh’s complaint is “legitimate,” partly because of the missed licensing deadline.

“Not only because that’s what the people voted on, specifically the dates, but I think it could potentially open up the state to a lawsuit by the delay,” Hansen said. “I think it’s a legitimate complaint to look at and maybe have us as a Legislature look into things if we need to.”

Cavanaugh suggested pairing his complaint with an Oct. 31 hearing on Legislative Resolution 226, an interim study introduced by Cavanaugh with support from Holdcroft and Hansen to see how the voter-approved medical cannabis laws are being implemented.

Holdcroft says he intends to invite commissioners and Nebraskans who led the 2024 ballot measure to that hearing and see what might need to be done in the 2026 legislative session to get the program “the way we want it to be run in Nebraska, whatever that is.”

Nebraska judges have legal discretion to strike down any regulation “if it violates constitutional provisions, exceeds statutory authority of the agency or was adopted without compliance with the statutory procedures.”

Lawmakers upheld that judicial power this spring and, beginning in May, permitted any such lawsuit to be filed in any district court, no longer just Lancaster County District Court.

Commission regulations

Included in the proposed regulations is a requirement that only in-state physicians could be part of a “Recommending Health Care Practitioner Directory.” Only those Nebraska practitioners could refer patients to licensed Nebraska dispensaries. Participating physicians would also need to complete annual education related to medical cannabis.

Cavanaugh said while such education might make sense, that is a policy choice for the Legislature. He noted the Legislature had the choice to create a more restrictive medical cannabis program this spring but ultimately did not.

Lawmakers this spring also failed to pass legal protections for physicians who recommend medical cannabis, which Cavanaugh urged as the executive branch intensifies legal pressure.

“The commission is not free to adopt its own definition of cannabis that is more restrictive than the definition contained in statute,” Cavanaugh wrote.

The regulations would similarly restrict Nebraskans from accessing certain types of cannabis, including raw flower, vapes and delta-9 tetrahydrocannabinol (THC), the part of the plant most associated with a “high.” Patients would also be limited to up to 5 grams of delta-9 THC every 90 days. Five ounces is the equivalent of 141 grams.

Cavanaugh wrote it would take seven years for a patient to obtain 5 ounces of delta-9 THC, yet voters set no THC restriction.

Under the regulations, up to four cultivators could each possess up to 1,250 flowering plants at one time as they work with up to four product manufacturers and 12 dispensaries statewide.

In addition to the regulatory public hearing on Oct. 15, written comments can be submitted up to 11:59 p.m. Oct. 15 by mail to the Nebraska Medical Commission, PO Box 95046, Lincoln, NE 68509-5046; by fax at 402-471-2814 or by email to mcc.contact@nebraska.gov.

Medicinal vs. recreational

Gov. Jim Pillen, who approved the emergency regulations, including with his stipulation of a plant cap, will eventually decide whether to finalize a future set of regulations. He has said his appointees will ensure Nebraska’s cannabis program stays medicinal.

Hansen led Legislative Bill 677 this spring with the support of longtime medical cannabis advocates. It was meant to help the commission by putting many regulations already in law. At multiple public forums that Hansen, Cavanaugh and Holdcroft led, voters said they would support recreational marijuana if state leaders stood in the way of medical cannabis.

“If the commission, the governor and some state senators fear recreational marijuana is the next step, I can only say that the surest way to guarantee the voters take that next step is by frustrating their clearly expressed will in favor of medical cannabis,” Cavanaugh said Tuesday.

The two resignations on the Liquor Control Commission this Monday, sought and received by Pillen, followed federal public corruption charges unsealed last week against the former executive director of the Nebraska Liquor Control Commission. He has pleaded not guilty.

The three liquor commissioners also serve on the Medical Cannabis Commission. No commissioner was implicated in the federal indictment.

Holdcroft said he was “completely surprised” by the alleged behavior of the former director. However, he said the Liquor Control Commission’s mid-September hiring of Micah Chaffee, who worked for Holdcroft and the General Affairs Committee as a research assistant, is an “excellent choice” with Chaffee’s familiarity with liquor and cannabis issues.

“He’s a family man. He has high moral standards. I have great respect for him and his ability,” Holdcroft said of Chaffee. “I think with his leadership and the governor’s appointment of some quality commissioners to replace the two that have resigned, I think we should be OK.”

‘The Legislature must act’

The Medical Cannabis Commission will return next Tuesday when it is expected to vote on the first cultivator licenses. Still, getting from seed to sale likely won’t occur until at least mid-2026.

Some lawmakers voted against Hansen’s LB 677 in May because they wanted to wait for legal challenges to play out against the laws, challenges that continue to this date and remain threatened. Among those threatening legal action is the Nebraska Attorney General’s office. Cavanaugh said the regulatory process has also increased legal risk.

Other senators wanted to give the commission time to act, which Cavanaugh said is now a “moot argument.”

Said Cavanaugh: “The Legislature must act to ensure that the will of the voters is observed.”

Nebraska Examineris part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Aaron Sanderford for questions:info@nebraskaexaminer.com.

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