Ronald Reagan famously asked voters, on the eve of the 1980 presidential election, to ask themselves whether they were better off than they were four years ago. It was a powerful question that asked Americans to take stock of how they saw their lives at that time versus four years before.

When it occurred to me recently that almost four years have passed since the enactment of Alabama’s medical cannabis program, it took me back. I decided to scroll through the pictures on my phone from the Spring of 2021 – seeing pictures of my family in earlier times with different haircuts and different perspectives on life – and I found myself feeling like the Kodak executives must have felt when Mad Men’s Don Draper (played perhaps in only the way Jon Hamm could play him) first introduced them to The Carousel. 

“Nostalgia,” Don said, “literally means ‘the pain from an old wound… It’s delicate, but potent… It takes us to a place where we ache to go.” 

So perhaps this is my meditation on nostalgia, through the lens of the Alabama medical cannabis program.

Where Are We Now?

So here we are, four years later. And I ask myself whether Alabama’s medical cannabis program is better off than it was four years ago. The easy answer is, of course, no. After all, not one Alabamian has received legal medical cannabis in that time. How, one could reasonably ask, is that possible?

I’m reminded of the lyrics from the title of this post:

Laughing all these many years

We’ve pushed through hardships, tasted tears

We made a promise one to keep

I can still recite it in my sleep

While many might find it hard to find laughter in what has transpired over these years (unless you have a particularly perverse sense of humor, in which case the author requests the privilege of a beer soon), we have certainly pushed through hardships and likely shed tears. But there are many of us committed to keeping a certain promise, one that I can recite in my sleep: Alabama will provide medical cannabis to patients with qualifying conditions who can benefit from that medicine.

How Did We Get Here?

To determine where we are, we need to know where we came from. Ah, the salad days of 2021. The sky was the limit. Patients were going to finally access medicine they had sought for years. Operators saw opportunities to help (and make a dime at the same time). Lawyers, including the author, were in high demand, and the conversations were cutting edge and exciting. Heady times, indeed.

Alabama became the 36^th state to allow cannabis for medical use when Gov. Kay Ivey signed into law the Darren Wesley ‘Ato’ Hall Compassion Act on May 17, 2021. The act established a process through which applicants would compete for a limited number of licenses in the following categories: (1) cultivator; (2) processor; (3) dispensary; and (4) “integrated facility” (which can cultivate, process, transport, and dispense medical cannabis under one license), as well as a to-be-determined number of licenses for secure transporters and testing laboratories. A Medical Cannabis Commission was established to license and regulate the medical cannabis program, with input from the Alabama Department of Agriculture and Industries on cultivation matters.

Many assumed – based on the statutory requirements that the commission accept licenses by September 1, 2022, and that the commission make a decision within 60 days – that licenses would be awarded late that year. Others, including the author, assumed that licenses would be awarded by the commission in early 2023. I’m wrong about things probably every day of my life, but I might not have been more wrong in my life than I was about that assumption.

Rather than require applications to be submitted on September 1, 2022, the AMCC set out a detailed timeline for the application and license awarding processes. The key takeaways:

1. Applicants could “request” a “License Application Form” from the commission between September 1 and October 17.
2. The deadline for submitting applications was December 30.
3. The commission intended to issue licenses on July 10, 2023.

All 94 applicants who submitted an application by the December 30, 2022, deadline received a deficiency notice of some kind, and applicants were provided an opportunity to cure those deficiencies. The University of South Alabama was assigned with the responsibility of leading the efforts to grade the applications.

On June 12, the AMCC announced its intent to issue 21 licenses to cultivators, processors, dispensaries, secured transporters, laboratory testing facilities, and integrated facilities.

In a shocking development, only four days later, the Alabama Medical Cannabis Commission voted to stay all proceedings related to the current offering of medical cannabis business licenses. The stay was issued because of the commission’s discovery of potential inconsistencies in the tabulation of scoring data and the commission’s need for additional time to seek an independent review of all scoring data.

In August 2023, the AMCC announced new awards. The results were largely the same as the June 12 awards, but they differed in a couple of ways. First, three additional cultivation licenses were awarded and one of the secure transportation licenses that received an award in June was not awarded a license in August. Second, there was a significant change in the integrated facility category: Verano Alabama, which scored highest in the University of South Alabama’s grading in both June and August, was removed from the list of awardees, replaced by INSA Alabama, which finished seventh in the August scoring but was nevertheless awarded an integrated license.

Care to guess what happened next? Yep, lawsuits. I probably qualify for medical cannabis based on the PTSD I experienced during this period, but I’ll summarize:

• Many applicants argued that the AMCC violated the Open Meetings Act when it retired to executive session and engaged, according to the challengers, in improper deliberations and a secret ballot in violation of Alabama law. The logic of the balloting is fairly straightforward. Challengers point out that (1) there must have been deliberations about the applicants in order to lead to the changes in the scoring, particularly in the integrated facility category, and (2) the “nominating” process essentially ensured that the nominations made in executive session would dictate the award of licenses because those receiving the most nominations were essentially ensured of receiving the most votes and the voting stopped before other applicants were considered. The AMCC denies that deliberations occurred and points to the fact that commissioners could have changed their nominations at any point, including before submitting the nominations to AMCC staff in public session.
• Applicants have challenged the process by which rules, regulations, and decisions made by the AMCC violated the Alabama Administrative Procedures Act. These claims go to the heart of the entire licensing process and, if successful according to challengers, call for the process to essentially begin again. Several other applicants have raised challenges to the manner in which applications were scored and whether the AMCC requirement that dissatisfied applicants pay the entire license fee (ranging from $30,000 to $50,000) in order to seek an administrative appeal of the AMCC’s decision violates due process.
• Verano Alabama has argued that the AMCC lacked the authority to stay its June 12 awarding of licenses and that it should be awarded a license. In prior hearings the court has expressed skepticism about this argument, but it remains a live issue.

As these lawsuits were filed, the court held a number of hearings. At each opportunity, the court expressed its strong preference that the AMCC work with challengers to find a path forward that would allow for the awarding and issuance of licenses. The court concluded that the applicants had established a prima facie case that the commission had violated the Open Meetings Act and stated that it would enter a temporary restraining order preventing the issuance of licenses while the court conducted an evidentiary hearing on the alleged violations of the act.

In October 2023, in an effort to turn things around (and avoid more litigation), the AMCC adopted new regulations and changes to existing regulations:

• An emergency rule creating additional application procedures;
• An almost-identical permanent rule that is due for public comment; and
• A set of technical changes to current rules.

The new rules created new procedures for:

• Re-submitting any exhibits that existed on December 30, 2022, but which were adversely affected by the 10-megabyte file size limit on portal submissions;
• Reducing the amount of material that is redacted in each application and opening the applications for additional public comment;
• Any applicant who failed a pass/fail item to show cause why they should not have their application rejected;
• Applicants to present their application to the AMCC and advocate for themselves in person;
• Disclosing certain scoring and grading information; and
• Considering, voting on, and awarding licenses in an open meeting, which the public can attend.

Finally, it seemed, we came to an end game as 2023 neared its close. We detailed the complex process – which was the result of a mediated settlement among some, but not all, litigants in the Montgomery County case – here, but the gist was that applicants would each have the opportunity to plead their case in an open hearing of the AMCC, and the AMCC would render its decision shortly thereafter.

Those hearings occurred and the AMCC awarded a third round of licenses. And everyone lived happily ever after, right? Not so fast my friend. Almost immediately, the court enjoined the issuance of dispensary and integrated licenses.

Those injunctions remain in place today, more than a year later. Applicants, advocates, and other stakeholders have been stuck in a sort of limbo since the final week of 2023. I can’t believe what I just wrote and how many lives have been impacted in the meantime. What a mess.

So Now What?

It’s hard not to become cynical observing this process play out. To pull from another Phish song:

The packaging begins to break
And all the points I tried to make
Are tossed with thoughts into a bin
Time leaks out, my life leaks in

But, as I have written recently, I believe that we have made progress – painfully slow and halting to be sure – and may well be on the precipice of getting this program off the ground:

But somehow in the face of years of advising clients and potential patients going through the hell that can be waiting on lawmakers, regulators, and courts to get a medical cannabis program off the ground, I became an optimist. At first, I’m sure it was little more than putting on a brave face for disappointed, frustrated, and even angry folks wondering why they couldn’t simply get resolution to their dreams. Perhaps this was the “fake it ‘til you make it” phase of my journey, but over time I actually became optimistic that Alabama would be able to launch a medical cannabis program that could provide relief to Alabamians so desperate for a different kind of therapy for what ails them.

Conclusion

I asked for a crystal ball for Christmas, but instead I got a bunch of quarter-zip sweaters (not the most perfect styling for a self-professed cannabis lawyer), so I can’t promise you what is going to happen. What I can promise you is that, while there are certainly those who seem committed to watching the whole structure burn down if they aren’t awarded a license, there are more on the side of making this work. More people looking to the court system – and particularly the appellate courts giving direction to the trial court – to bring some closure to this process. I remain optimistic this is the path forward.

If we can do that, we can stand up a medical cannabis program with integrity, decency, and empathy that Alabama can be proud of. Wouldn’t that be nice? That is a place where I ache to go.