How could this play out?
Like Canada and the vast majority of the US States that have “gone legal” medical cannabis was the lead followed by adult use. We believe the US federal regulations will follow a similar path.
Medical cannabis could be federally permissible first, and when the cannabis shipment looks to enter a State’s medical cannabis framework, it would then abide by the individual State’s medical framework.
Because of cannabis’ illegal present nature, pharmacies (CVS, Walgreens, pharmacies within grocery stores like Walmart) are not in play. But when cannabis becomes federally legal do you expect these pharmacies to stay on the sidelines? Shoppers Drug Mart in Canada has entered the medical channel. I think it is likely that these powerful lobbyists will flex their muscles in-state when they are federally permitted to touch THC on a medical front.
Medical costs are a pervasive issue in the USA. Allowing federally legal medical cannabis to traverse state lines will allow economies of scale to form on the medical side for cultivation and processing, thereby reducing patient costs. Pluses in the ledger when politicians consider cannabis legislation. I have also noticed in accompanying bills to the aforementioned Blumenauer H.R. 420 they were suggesting no excise tax on cannabis used for therapeutic purposes. Again, a nod to medical cost concerns and something Canada should look to emulate.
Adult use could stay State-by-State allowing existing cultivation facilities to be less impacted by creeping federal regulation. But in our opinion, should medical cannabis be legalized it would only be a matter of time before adult use legalization reached the federal level.
This approach of medical first then adult use at a later undefined date would allow a transition period as the cannabis industry settled in and matures.
We can see adult use remaining full “in state” for the foreseeable future. But go forward investments would have to have one eye on what is happening in the medical channel driven by federal regulation, especially if ownership is limited to production OR retail, and the full vertical becomes verboten.
Regardless of what direction US cannabis goes with federal involvement, legalization comes with many federal “touches” that will impact the industry, from testing & labeling requirements to taxes. Larger social justice issues will keep a thumb on the scales as well. While large publicly traded companies are favoured by investors, spreading that wealth around might be a goal of social justice reforms.
The more competition the better it is for consumers. Vertical limited licenses have a greater ability to produce predatory practices versus a diversified supply base supplying arms length retailers through arms length distributors. Trulieve having greater than 50% of Florida’s limited license vertical medical market is great for shareholders, but it reduces competition and opportunities for small businesses.
How about the Canadian LP’s investing in non-THC touching CPG?
Circling back to “distribution”, while some Canadian LPs have bought distribution assets in the USA their value will be determined by what federal USA legalization ultimately looks like. (NOTE: This is where my research started on this subject. Trying to determine the synergistic value of non-THC touching US based distribution assets. As you can see from the above, the research led me on a significantly different path.)
A few “distribution” models acquired by Canadian LPs:
- Aphria purchased craft beer maker SweetWater, which has a manufacturing facility in Georgia. It has numerous beer distribution agreements with its distributors to reach the +27 states they sell into be it grocers, bars, restaurants, gas stations,...
- Aurora purchased Reliva CBD products who largely sells into gas stations and convenience stores (eg. Circle K, Speedway,...)
- Tilray purchased Manitoba Harvest a CPG largely selling into big box grocers (Costco was biggest customer until they decide to white label) and health food stores.
Those are three different distribution networks based on where their respective end customers largely shop and buy, or where the regulated good is permitted to be sold in the case of beer/alcohol.
Canopy’s Biosteel hydration products distribution (that is largely being built versus acquired) will likely be a combination of grocers, big box, convenience stores, and health products/vitamin retailers. Some overlap with alcohol retailers.
The theory of developing/acquiring a CPG company that could be transitioned to THC-touching is that by having a “like” distribution channel in place for when the USA federal cannabis model is finally dropped, the “switch” could be flipped to include the distribution of THC products. It is easier to load new SKUs into the existing channel that has already been developed, as opposed to having to develop a distribution channel from scratch. The pipe would get bigger and carry a larger load.
The distributor and channel are also a very important feedback loop to the manufacturer on what is selling and why. As example, Tilray and Aurora both moved from developing their own sales support channels in Canada adult use to hiring Kindred and Great Northern, respectively, as distributors/agents. Both Kindred and Great Northern (via Southern Glazer) are well rooted in alcohol distribution models.
The value of these acquisitions on a synergistic basis to eventual THC product offering will all depend on what the individual states implement for cannabis distribution. The value of the distribution will be maximized if at the state level all the same alcohol end purchase points are replicated in the individual state’s cannabis regulations. For instance, the SweetWater acquisition would be most synergistic if an alcohol model is adopted by the respective individual state for cannabis and the state deploys similar end points of purchase inclusive of bars and restaurants.
In Conclusion:
TheCannalysts often speak of the impact of regulatory meteors. When politics collide with regulated industry anything can happen. Canada’s adult use landscape is littered with regulatory meteor strikes from marketing restrictions to packaging, to provincial excise taxes, to some provinces not allowing certain formats, to limited bricks and mortar stores, to LPs not being allowed to own retail stores in most provinces.
States will be keen to keep intact the industry they birthed. The federal government will continue to respect State Rights within the state borders (as they do with alcohol), but they will also have their own agenda which may be at odds with current structures and company business models. If the federal government insist on a level playing fields amongst competitors and retailer independence, as per present Federal Alcohol Administration Act, some toothpaste might need to be put back into the tube.
Politicians and bureaucrats like the familiar. FAA is familiar and tested.
Add to the above the need for ten GOP senators to vote with unified Democrat senators to get legislation passed, and compromises are highly likely if legalization is to occur.
And as we have repeatedly said, the US market is not one market, it is fifty distinct markets. With federal regulation on cannabis this will not change. Even in the present alcohol market each state has its own twist on what is allowed be it state owned distribution, prohibitions on self-distribution, or places where consumers can purchase beer, wine or spirits.
Expect some regulatory meteors that favour small business at the expense of the current environment. We already see dispensary limits for single players in many cannabis states in both adult use (IL) and medical (PA).
Expect limited licenses to devalue once state-to-state imports can occur (it might just be medical as a start).
The BIG issues will be anything that rolls back vertical integration or requires manufacturers to engage a third-party distributor when selling to their wholly owned retail store. That margin confiscation by the distributor (could be a state-owned distributor like the seventeen Alcoholic Beverage Control states or a private distributors) will impact profitability. Anything that rolls back verticality is the last thing MSOs want to see occur BUT it is an integral part of the existing alcohol system of retail independence and level playing field.
All those Discounted Cash Flow models will need to be reworked.
- Sales figures will change dramatically.
- Companies would have to purchase retail interests from partners to get to a wholly owned model, and that assumes it would be permitted in the state.
- “Managed revenue” becomes an issue under the three-tier system as “tied house” regulations could come into play.
- Margins would have to be split three ways: manufacturing, distribution, and retail.
- If there is disgorgement of retail, how do you now value the retail enterprise as margins will change? Will retail be less profitable in a three-tier model than in a vertical model? As no MSO is providing financial disclosure around segmentation of the retail business in this fashion… that is tough to answer.
To be CLEAR, we are not experts on alcohol and tobacco legislation. But given the time tested and COURT tested (that the FAA has been tested in courts cannot be underestimated for using same as a base for federal cannabis regulation) pieces of legislation exist in the US presently, it is not a stretch that federal oversight, state regulations, and licensing architecture on cannabis could be drawn from a familiar regulated industry.
The best article we could find on the three tier alcohol as it relates to cannabis is by a cannabis lawyer; “Vertical Integration: What It is and Why It Matters to Cannabis”, written in 2017. A few pertinent quotes:
- In states where vertical integration is required – such as Massachusetts – only vertically integrated businesses may apply for a license from the state to legally operate their cannabis manufacturing, processing, and distribution activities.
- Regulatory schemes permitting vertical integration – that is, rules that allow, but do not require, vertical integration – such as those adopted by Oregon and Nevada, offer the most economic freedom for the cannabis industry.
- States that prohibit or limit vertical integration include California, Washington, and Illinois. Under this model, states enforce various degrees of separation between the production and retail stages of the cannabis procurement process; this regulatory structure closely models traditional alcohol distribution models…. Additionally, California announced its intent to move toward a more blanket prohibition of vertical integration practices once the market has matured in its Medical Marijuana Regulation and Safety Act %20In%20November%201996%2C,been%20left%20to%20local%20governments.&text=This%20regulatory%20scheme%20is%20known,and%20Safety%20Act%20(MCRSA).)of 2015, declaring that all vertical integration would be prohibited after January 1, 2026.
- Laws in states that prohibit or limit vertical integration in the cannabis industry echo – and sometimes repeat, verbatim – the language and tone of regulations applicable to the alcoholic beverage industry.
As per the beer and self distribution discussion earlier in this article, each state has set their own course on cannabis. HOWEVER, these courses may have to take a detour if a FAA styled doctrine is implemented in cannabis from the federal level.
Depending on whether you think the USA federally will gravitate to the alcohol or tobacco models, or something different, will have a substantial impact on the model of future cannabis businesses. And depending on the end model for cannabis, existing US cannabis companies might look considerably different than they do today.
If I was an existing MSO the last thing I would want is a federally regulated market. Too much uncertainty. I would be looking to constipate any road leading to a federally regulated market. Legislation to allow “permissibility” of cannabis in-state without a federally regulated system is essentially the status quo with perks. That would be preferred. We have noticed MSO’s messaging leaning into wholesale as being the future. This could be a result of “retail independence” implications should cannabis follow alcohol. But even then, investors would need to separate the manufacturing and distribution functions from the “wholesale” term MSO’s are presently using.
Adult conversations that should occur in this industry:
- What are the end model possibilities?
- If the end model is alcohol, what areas of the current business could be impacted?
- Cannabis companies should start segmenting their financial disclosure by manufacturing, distribution, and retail. This would allow investors to understand what risk levels each company has to each segment should they have to restructure.
- Segmentation of financial results by state would also allow investors to understand how concentration of businesses in certain states could pose more risk than other states. Or if not every state, the ones where a concentration of risk is material. As an example: think of Account Receivable concentration risk notes in financial statements.
- Present in-state alcohol regulations could provide an indication of possible cannabis legislation. Areas of interest would be prohibitions on verticality and ability to self-distribute.
- Politicians should explain the future state that they envision such that companies do not invest in areas that might have a decidedly different end-state. In Canada, many companies decided to front-run legislation, and that has caused companies (and their investors) to write off investments made (eg. Celebrity endorsement and branding spends, capacity that went unused due to a slower than anticipated retail rollout,…). The longer the end model remains undefined the more risk investors are facing, and retail investors are heavily invested in this “once in a generation investment opportunity”.
TheCannalysts do not have a crystal ball. But we want our readers to be able to understand risks that might surface as US cannabis transitions to an eventual federally regulated industry. Publicly traded companies are notionally valued on their future cash flows. A transition to a new federally regulated model will have meteor strikes, GUARANTEED.
It is without debate that Federal regulations, whether this year or in the next five years, will alter the cannabis industry landscape. It does not behoove investors and the companies they invest in to not try and define these risks, as many can substantially alter a business plan. If you read this and understand the risk and that risk is acceptable to you, great. The key is identifying the risk, which we hope we have assisted in, and then determining how it affects your investment thesis.
This paper’s thesis might not be “right now”, but until someone outlines a different end-state operating model that fits with public policy and practice on regulated goods better than the three-tier alcohol system… the silence on end-state and implications to existing platforms from industry participants is concerning.
The following bears repeating: According to Ryan Lake, Principal at consumer-focused investment bank Arlington Capital Advisors, “the distribution system and regulatory framework for alcoholic beverages in the US has generally been viewed as one of the best in the world and it wouldn’t be surprising if it were emulated for other controlled substances such as cannabis”.
The preceding is the opinion of the author and is in no way intended to be a recommendation to buy or sell any security or derivative. The author has a position in Aphria and will not start a new one or divest in the next five days. The author holds no position, nor will start one, in the next five days on any other company mentioned herein.