What happened.
On April 16, 2021, the Mississippi State Department of Health published in draft form Regulations for Advertising and Marketing Medical Marijuana and Regulations for Labelling, Packaging and Tracking Medical Marijuana. On the same date, the Department also filed administrative filing notices setting these proposed regulations for oral proceeding on May 11, 2021.
What it means.
As reported previously, the Mississippi Administrative Procedures Law (APL) requires state agencies to publish draft regulations for comment before they become final. On April 16, 2021, the Mississippi State Department of Health published a 3-page draft of regulations the agency is proposing to govern the advertising and marketing of medical marijuana and an 8-page draft of regulations for the labelling, packaging and tracking of medical marijuana as part of the state’s Medical Marijuana program. Under the APL, persons have the opportunity to submit in writing arguments, data, and views on these proposed rules for a period of at least 25 days following their publication. The May 11, 2021 public hearing, which will take place virtually by Zoom, will consider public input on all the proposed regulations at 10:30 a.m. (CDT). Further details involving the hearing and the proposed rules can be found here: https://msdh.ms.gov/msdhsite/_static/30,0,425.html.
Regulations for Advertising and Marketing Medical Marijuana
The new regulations prohibit licensed entities participating in the Medical Marijuana Program from advertising and marketing in any media including broadcast or electronic media, print media, and other forms of communications such as text messaging, mass emails, and window displays. (Rule 2.2.1) Licensed entities, however, are permitted to participate in branding activities, including establishing a website that provides general information on the licensed entity’s contact information, retail dispensing locations, and a list of products available, as well as general information “reasonably expected to be necessary” to serve qualified patients of the Medical Marijuana Program. (Rules 3.3.1, 3.3.2) Additionally, the brandings must include the licensed entity’s license number but cannot target minors, pregnant women, breastfeeding women, or promote non-medical use of marijuana. (Rule 3.3.3) Inducements, such as the use of discount cards, coupons, “punch cards,” sales/discounts on medical marijuana, “buy one, get one” approaches, give-aways of any type or product sampling, are prohibited. (Rule 3.4.1) Education on the risks and benefits of the use of medical marijuana during “a one-on-one session” that includes a qualified patient, caregiver, parent, or legal guardian, is permissible and is not considered advertising or marketing. (Rule 3.5.1)
Regulations for Labelling, Packaging and Tracking Medical Marijuana
The new regulations also prohibit licensed entities from selling any medical marijuana or medical marijuana products that are not packaged or labeled in accordance with the regulations. (Rule 4.1.2). Medical marijuana and medical marijuana product packaging, among other things, must not be designed to be attractive to children, must be sold in child-resistant containers, and cannot be confusingly similar to the packaging of normal food and beverage items (Rule 4.2.1). And all retail-ready medical marijuana and medical marijuana product packaging must be opaque and light resistant, must fully enclose the product, must be resealable, must protected the product from contamination, and must not impart harmful substances onto the product. (Rule 4.2.3) The labels for medical marijuana and medical marijuana products sold at retail, among other things, must identify the supplier of the product, must include a batch number and unique “seed to sale” identifier number, and must state the product weight, ingredients, total THC, total CBD and terpenoid potency. (Rule 4.3.1) There are additional labeling requirements for edible products, such as the inclusion of nutritional and allergen information. (Rule 4.4.2) Dispensaries must return, refuse to accept, or dispose of any medical marijuana or medical marijuana products that are improperly packaged or labeled. (Rule 4.1.2 through 4.1.4) With regard to tracking, all licensed entities are required to utilize a “seed to sale” inventory system prescribed by the Department to allow for real-time monitoring of medical marijuana and medical marijuana products. (Rule 4.7.1) Licensed entities may use a system of their own choosing, provided they comply with the system requirements in the regulations and the system is interoperable with the Department’s prescribed system. (Rule 4.7.2) The tracking system involves the tagging of all plants and products with unique identifier tags. (Rule 4.7.3 through 4.7.5) Licensed entities must also deliver monthly reports to the Department detailing information such as quantities of medical marijuana and medical marijuana product purchased and sold, and explanations of missing, stolen or otherwise unaccounted-for marijuana and product. (Rule 4.8.1 through 4.8.4).
The publication of the advertising and marketing regulations and the labelling, packaging and tracking regulations follows the April 14, 2021 oral argument before the Mississippi Supreme Court on the direct challenge to the constitutional Medical Marijuana measure (Initiative 65) approved overwhelmingly by Mississippi voters last November.
The Department of Health is expected to propose additional rules and regulations to govern the program no later than July 1, 2021, the current deadline for final regulations to be released under Initiative 65. We will publish additional alerts as regulations become available.
