What Maryland Tells Us About the Future Of Competitive Cannabis Licenses

Several weeks ago the Maryland Medical Cannabis Commission finally announced the top scoring applicants for the state cannabis grow and processor licenses.  These coveted licenses were awarded after an unusually long selection period that left many wondering if the wait would ever end.  For a great breakdown by the Washington Post of the companies selected for licenses, check out more information here.

Maryland’s decisions reflect one of the last competitive application processes as we have come to know them.  Both Ohio and Pennsylvania are on the horizon for a competitive medical cannabis application, and Arizona is shuffling through the 750 lottery applications they received for 31 licenses, but we most certainly are at the beginning of the end.

On the heels of similar decisions in Hawaii, Florida, New York, Minnesota, and others before them, what commonalities can we see in the results?

  1.  $$$.  For starters, there is no doubt these hyper-competitive processes require significant cash.  Non-refundable application fees of $25,000 and annual licensing fees of up to $200,000 set the stage for the kinds of resources that are required.  But these fees pale in comparison to the costs of establishing large-scale cannabis growing operations that can exceed $10,000,000 per facility.  If your team scrounges up the bare minimum financial backing required by regulators, chances are you will not be awarded a license.
  2. White Males.  There is no disputing that the competitive medical cannabis states have been sorely lacking in racial and gender diversity among their leadership.  As someone that helped create scoring systems to incentivize minority ownership among applicants in Illinois, it is an issue that I care deeply about.  There is no arguing that, so far, we have collectively failed to create industry ownership that recognizes and empowers those communities most harmed by the decades-old War on Drugs, let alone reflect the populations these medical cannabis businesses serve.  Kudos to Pennsylvania for including a mandatory diversity plan in their medical cannabis law and draft regulations.  For more context about minority leadership in the cannabis industry, check this out.  Hopefully this will not reflect a long-term trend (no disrespect intended for my fellow white guys out there).
  3. Local Ownership and Local Support – Regardless of whether your core team is born and raised locally, a recurring theme across these competitive states is that local investors and local community support are mandatory.  Some states have delegated a virtual veto-power to local towns that do not want cannabis businesses in their backyard (see Massachusetts).  Hawaii was an unusually residency-centric application process, and Florida set the eligibility bar by requiring floral nurseries with 30+ years experience growing plants.  As Ohio and Pennsylvania develop their regulations, expect explicit and implicit requirements for local support.  Any applicant struggling with local zoning needs to find a new town to hang a shingle.
  4. Selection Processes Work, But Are Messy – A fundamental question government regulators face when there is a limited number of licenses to award: “how do we pick winners and losers?”  If there is a better way than a merit-based, competitively-scored selection process, I’ve never seen it.  I take issue with the lottery system used in Arizona (trust me, watch this video), which means someone, somehow has to pick something approaching 1 winner for every 10 applicants.  Others have suggested an auction to the highest bidder (see #1 and #2 for why that’s problematic).  The odds vary depending on the state, region, type of license, etc., but ultimately a process must be created for licensees to be chosen.  The best selection processes have transparency (the public is informed about the process, clear articulation of the point system, criteria are plainly identified) and do absolutely everything imaginable to protect against actual or appearances of impropriety at a time when the public automatically distrusts government and assumes shady dealings.  Each selection process going back to Massachusetts and Connecticut have drawn criticism and lawsuits, but they have also generally identified the better (if not best) applicants in the pool.
  5. Building the Most Experienced Team – One trend that has received less attention is the increasing premium placed on an exceptional team of experts.  Consider, if you will, an applicant with $5 billion in assets and billions in debt (let’s call him Blonald Lump).  Mr. Lump has a decent grower from a recreational cannabis state who has been growing cannabis “for 30 years” (you do the math) and several former Wall Street bankers.  If Mr. Lump is facing a team with $7.5 million cash on hand, deep and longstanding ties to the local community, a cultivation and processing team that has years of experience in legal markets and an unblemished record, a nationally-recognized former law enforcement officer, and business executives from multiple industries, Mr. Lump loses even though he is used to “winning.”  Applicants are increasingly becoming more sophisticated in writing a great application narrative that appeals to regulators – and it is starting to all blend together.  The narrative itself is not a great way to choose licensees – it is the substance behind the applicant, and the experience of the team members that states are increasingly using to pick the best of the best.
  6. There Is No Guarantee, No Silver Bullet – If anyone ever guarantees you a license prior to a competitive merit-based selection, run in the other direction.  Applicants that were very successful in previous medical states often fail to get a license in future states.  Consultants that work with 10 teams in a state that issues 5 licenses is not likely to win any licenses for their clients.  Each state has been unique, and you need to take the time to understand the culture of the state, the intentions behind the regulations, and the goals behind the selection criteria.  Each new state looks to those that came before them for best practices, and traps to avoid.  I spent time speaking with every single medical cannabis program that came before Illinois, and I guarantee you new regulators in developing states will do the same.  Each state puts its own stamp on their program, and what worked in one state 6 months ago very well could hurt you in the next application.

If you are looking to apply in Ohio or Pennsylvania, or any future competitive state – study the regulations, focus on your real estate, and build the strongest team that you can.  It is an exhilarating process competing for a medical cannabis license in an industry that is truly helping people, and I wish you all the best.

 

Word(s) of the Week: Vertical Integration

Vertical Integration” – Defined as:

  1. The latest Sylvester Stallone movie; or
  2. The psychological impact of being shorter than 5’9″ in height; or
  3. The skill of painting the wall without getting paint on the ceiling; or
  4. When one company owns and controls the cannabis cultivation, processing, and dispensing processes.

The answer, of course is #4.  Besides, everyone knows Vertical Limit starred Chris O’Donnell, while Stallone’s ice mountain climbing movie was Cliffhanger.

In practice, vertical integration represents the ability for a cannabis company to manage every aspect of growing and selling cannabis – from the earliest planting of the seed or clone, through the final sale to the consumer.

A cannabis business often benefits from vertical integration – it allows a company to control quality, create staffing efficiencies, and reduce costs and tax liabilities throughout production.

So why are cannabis businesses not all vertically integrated?  Because the government sometimes stands in the way.

Many medical cannabis states allow (and in fact, require) vertical integration – California, Massachusetts, New York, Florida and others.  Yet others require separate licenses for cultivation, processing, and dispensing – including Illinois, Maryland, and soon-to-be Pennsylvania.  There are some good policy reasons for splitting them up – for example, those that are excellent at cannabis cultivation might be awful at patient education and counseling at a dispensary.  But generally if you find states without vertically integrated cannabis businesses, it is due to regulation as opposed to choice.

This is what advocacy looks like

On Wednesday, March 16, 2016, the Pennsylvania House of Representatives passed a comprehensive medical cannabis bill – SB 3.  It almost didn’t happen.

Pennsylvania’s legislature grappled with many of the same roadblocks seen in Maryland, Illinois, Massachusetts, Connecticut, Nevada, Minnesota, New York, Hawaii, and so many other states.  There were political barriers, bureaucratic challenges, advocacy infighting, anti-marijuana group pressures, and old-fashioned reefer madness.  In the end, SB3 succeeded because of some moms.

Say hello to pure, raw, advocacy:

20160314_162300This is Pennsylvania’s Campaign for Compassion.  I had the pleasure of meeting some of their members last week when I visited the State Capitol in Harrisburg.  In their own words, this is what they do:

We are a Pennsylvania based community resource with the mission to educate the public, as well as our General Assembly, concerning the positive effects of the often misunderstood realm of cannabis treatment. Ultimately, our goal is to work towards comprehensive medical cannabis legislation in the state of Pennsylvania.

But this description fails to capture the unstoppable force they represent when they go office to office, changing the hearts and minds of legislators that may have never met someone whose life was turned around by the use of medical cannabis.

As an example of their significance, the Pennsylvania Senate had passed the medical cannabis legislation almost 10 months ago in May 2015.  Yet in an illustration of the ugly side of politics, the bill was bottled up in a House committee by a hostile representative, Matt Baker.

“I’ve had marijuana bills in my committee for years, and I’ve never moved them,” he said. “This should come as no surprise to anyone.”

What may have come as a surprise to Rep. Baker is that he was no match for the moms – many of whom have children with severe intractable epilepsy.

The bill was moved to a different committee away from Baker’s control, and ushered to passage by several champions including House Majority Leader David Reed with a commanding final vote of 149-43.  Nearly everyone credited the moms with the House passage.  The bill will soon make it back for concurrence by the Senate (with terrific sponsors Sens. Leach and Folmer) and is poised to be proudly signed by Governor Tom Wolf.

This phenomenon has played itself out in numerous states, including Illinois.  Our original legislation excluded epilepsy and seizure disorders from the list of eligible debilitating conditions.  This restrictive bill (sans epilepsy) passed with the slimmest of margins with 61 Yeas and 57 Nays.  Only one year later, after “the moms” organized to add epilepsy, SB2636 passed with 98 Yeas.

The takeaway?  Don’t mess with the moms…