|   SCENARIO 2   |

It’s the year 2028 . . .

Cannabis is a Schedule II controlled substance.

Stephen opened Highlight Cannabis in 2018 and since then, the business has grown into a booming multistate operation (MSO). Highlight Cannabis first started as a medical cannabis business, focusing solely on medical use only states. As those states passed laws also allowing for recreational use, Highlight Cannabis expanded to also offer recreational options. Highlight Cannabis currently has 23 medical and recreational cannabis dispensaries and over 350,000 square feet of cultivation space across four states.

As a large cannabis business that works all along the value chain and across multiple states, Highlight Cannabis has navigated a vast range of operational complexities and risks through the years. Now, however, Stephen and his company are facing another looming business hurdle: responding and adapting to the federal government’s recent decision to move cannabis to a Schedule II substance.

Rescheduling Cannabis to a Schedule II Substance

On the surface, moving cannabis to a Schedule II classification seems like a step forward for the industry—and in some ways it is. While under the designation of a Schedule I controlled substance, cannabis sat alongside substances like heroin—all considered by the federal government to have a high potential for abuse and no acknowledged medical use. As a Schedule II substance, cannabis is still considered a controlled substance, but it has greater opportunities for research and study. It also will be much easier for the medical community to offer and prescribe it to patients. 

However, this will all be done under the umbrella of federal regulation.

Now the federal government wants all products to undergo rigorous testing and FDA approvals. Highlight, and cannabis businesses across the nation, are wondering what to do next, since the products currently on their shelves doesn’t meet these newly-announced standards and requirements. This puts existing cannabis businesses, from the small mom-and-pop farms or shops to the labs, growers, manufacturers, and large multistate operators like Highlight Cannabis, in a precarious position that threatens their business.

Is this Dooms Day for the Existing Cannabis Market?

In the Attorney General and Secretary of Health of Human Services joint announcement about the decision, existing cannabis businesses will be given several years of runway for this new change to go into effect—and it appears the government is attempting to handle the medical and recreational markets differently. Though their intention is to ultimately regulate the entire cannabis industry, they’re choosing to turn their attention to the medical market first and allow states to continue to manage the recreational side, as they have in the past.

For businesses that operate exclusively in the medical market—growers, manufacturers, dispensaries, labs—this feels like a death sentence. Some may try to pivot to the recreational side, hoping the government will allow states to continue regulating that market. Others wonder if it’s better to seek acquisition by one of the large, national pharmaceutical companies that have been waiting for the opportunity to operate in a government-sanctioned framework.

An even bigger fear for many medical businesses is whether there’s a chance they’ll be forced to pull products off their shelves and out of inventory or risk a federal raid that forcibly seizes inventory. Government action is excluded from most insurance policies, meaning in a situation like this, they will have little to no recourse for financial recovery.

Although medical cannabis businesses are feeling the changes of the recent federal legislation most acutely, the recreational market isn’t immune. Many on the recreational side worry that it’s only a matter of time before the federal government steps in to impose regulation on them as well.

“If cannabis gets rescheduled to Schedule II, and the government strongly enforces that all cannabis to go through FDA approval, then yes, it could be the worst case scenario, where literally they’re going to send federal officials in to raid and pull product off of shelves, whether it’s medical or recreational.”

Jodi Green

Counsel, Feldman Legal Advisors

The Future is Hazy

Highlight Cannabis, like all other cannabis operations, are left reeling, as they work to figure out their next move. What will happen to all the existing products on their shelves? Is there a chance they’ll get raided by federal law enforcement if they remain open? How will they be able to compete with the large pharmaceutical companies entering their space? Should they try to pivot out of the medical market and into recreational only to give themselves more runway?

Serving an Industry Plagued with Uncertainty

In response to cannabis rescheduling, the cannabis insurance space is seeing major shake-ups, as well.

For some businesses, securing insurance may become even more challenging than it has been in years past. If concern over government retribution continues to mount, carriers that were once willing to offer insurance to cannabis companies may no longer consider it worth the risk and pull back capacity.

That said, there will also be carriers and companies that view rescheduling as an opportunity to enter the market.

“Rescheduling could be a negative, for cannabis insurance as a whole, if it creates more uncertainty. Insurance companies do not like uncertainty. They make money by knowing what is going to happen and pricing things accordingly.”

Jodi Green

Counsel, Feldman Legal Advisors

Insuring Mergers and Acquisitions Activity

Large pharmaceutical and medical companies wishing to quickly gain market share are seeing the opportunity to make good use of the smaller, existing medical cannabis businesses that have been in operation for years. Now that there are plans for a federally legalized framework for medical use (even though it’s limited and tightly controlled), banks and financial institutions are more willing to engage in business. This gives large, capital-heavy pharmaceutical companies access to additional funding options and paves the way for mergers, acquisitions, and industry consolidation.

This increase in consolidation prompts demand for insurance products commonly used and expected as a part of merger or acquisition deals, including D&O, representation and warranty insurance, litigation buyout, contingent liability insurance, and a variety of tail coverages.

“In this scenario, if cannabis becomes a Schedule II substance, there will be more consolidation because the bigger operations— particularly big pharma—are going to have access to banking and cheaper money.”

Erich Schutz

Jencap Vice President, Cannabis Practice

Influx of New Insurance Companies to the Regulated Market

Now that the federal government has sanctioned cannabis for approved medical use, the admitted markets will likely respond by offering products for medical operations. Large insurance companies that already serve big pharma companies have been silently preparing in the background, positioning themselves to step into the cannabis market when the time is right. Now that there is a legal avenue for cannabis, the big hurdle that’s kept many large insurance players out of the game is eliminated.

Despite their reach and scale, however, these larger insurance companies will have a steep learning curve as they learn to navigate the cannabis space. Legacy insurance companies will, to some extent, have an advantage over these new market entrants, due to years of cannabis-related experience. However, they’ll be forced to relearn and adapt to this shift in legislation. Those who do that well will rise to the top as insurers of choice.

Changes in What’s Offered and Available

With any market change, insurance adapts to offer products that meet current demand and need. For example, with the medical community able to more freely recommend and prescribe cannabis to patients, there’s an increase in demand for professional lines and medical-related insurance for medical professionals.

Property insurance will also see some unique situations and circumstances from their insureds. Cannabis facilities are designed and built with a very specific, narrow purpose that doesn’t apply broadly outside the cannabis industry. If rescheduling forces existing cannabis operations to close, they may not be particularly attractive real estate investments to anyone outside of the cannabis industry. This could mean a lot of buildings and properties being left vacant and moving from operating policies to vacant insurance policies.

“There’s going to be a steep learning curve in the insurance marketplace, if cannabis gets rescheduled. The policy forms are not going to be favorable to the risks they’re insuring against. Businesses are going to need agents and brokers of a sophisticated level, who can walk them through the policy.”

T.J. Frost

Symphony Risk

“Even with a flood of admitted markets, I still think the legacy players exist in a Schedule II world because of longevity, experience, and support for the cannabis operators that we’ve had since day one.”

Charles Pyfrom

CannGen Insurance

Insuring a Risky Business

A world where cannabis is rescheduled to a Schedule II substance provides some federal legitimacy to the market, yet the tight restrictions it imposes severely limits the industry as a whole. More than ever, cannabis operators will need the support and guidance of their longstanding insurance partners to help create proper risk management plans and navigate the shifting landscape.

The  Jencap Cannabis Insurance Team

The Jencap Cannabis Insurance Team

Jencap’s cannabis experts have devoted their careers to difficult-to-place risks. We have boots on the ground in every major cannabis market, fully understand the unique challenges of cannabis businesses, and stay on top of current state and federal legislation. Our fully customized, home-grown insurance solutions span every class of cannabis business and ancillary services—from the farm to the shelf.

Jencap, Your Go-To Cannabis Insurance Partner

Whatever the future looks like for cannabis, the insurance industry will need to adapt and evolve alongside it. Partnering with a longstanding, specialized wholesaler like Jencap keeps you one step ahead and able to proactively meet your cannabis clients’ needs, even in a complex and ever-changing environment.

Managing a cannabis business is complex enough, but finding adequate insurance coverage shouldn’t be. With Jencap’s unmatched reputation and market clout, you’ll have access to a national network of non-admitted and A-rated cannabis carriers. You can rest easy knowing you’re working alongside experts who adeptly cut through the messy tangle of regulations and policy forms to find the coverage your clients need. Contact Jencap today to learn more.

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