Oklahoma blinks on smokable cannabis —but new regs still bottleneck businesses

Posted on August 2nd, 2018 by Bill Weinberg and tagged , , , , , , .

leafThe Oklahoma Board of Health has issued new rules to oversee the state's medical marijuana program, and advocates are relieved that the ban on smokable herbaceous cannabis has been removed. However, concerns remain about other restrictions that could make it essentially impossible for cannabis business to function in the state.

Accused of violating the will of the voters who approved State Question 788 in June, the Oklahoma Board of Health released a new set of regulations for the state's nascent medical marijuana program on July 31. These were approved the following day by a unanimous vote of the board.

These new rules overturn emergency regulations instated at a board meeting on July 10 that had been met with much activist outcry. The emergency regs had banned smokable cannabis, and also required that a pharmacist be on site at all dispensaries. Both those provisions are removed in the new regs—as are limitations on THC content. The new rules are also less than a third the length of the emergency regs, seeming to cut down on needless bureaucracy.  But advocates are nonetheless warning of new problems.

A legal contradiction?
Ron Durbin II, a Tulsa attorney representing Green the Vote, the group that campaigned for Question 788, said that despite being shorter, the new regs still contain "volumes upon volumes" of unnecessary provisions for commercial licensees. Green the Vote is suing the Oklahome State Department of Health over its handling of the regulations. The nine-member Board of Health is appointed by the governor to oversee the Department's policies.

Durbin pointed to what the Tulsa World described as a "statutory conflict" in the new regulations. He told the newspaper that the new regs would basically "apply a restaurant standard to a greenhouse operation," making it "nearly impossible" for cannabis businesses to be in compliance. The state public health code bars the sale or marketing of any food or confection under a name, label or brand which "either precisely or by slang term or popular usage" refers to a drug that is barred by state law. Cannabis, despite approval of Question 788, remains on the books as such.

By stating that the entire Oklahoma health code applies to cannabis businesses, the regs may actually preclude the marketing, sale or distribution of cannabis products. At a minimum, this would appear to bar the marketing of edibles—which were included in the text of 788. By a broader interpretation, it could also bar tinctures and extracts.

"They've created such a conflict where they’ve authorized all these things and then with this one inclusion precluded it all," Durbin complained to the Tulsa World. "It's just indicative of the shoddy workmanship they've put into this entire process.'

As Oklahoma's News 4 reports, three groups were invited to testify before the health board voted to approve the new regs Aug 1: Green the Vote, Oklahomans For Health, and New Health Solutions Oklahoma. All are advocates of the medical marijuana program, and all expressed concerns about the restrictions. Nonetheless, the regs were approved without amendment. A next hearing will be held Aug. 8, when there will be another opportunity to amend the regualtions.

Legal challenge pending 
As News OK reports, two groups filed separate suits challenging the emergency regulations days after they were issued July 10—Green the Vote and the Bussett Legal Group, representing various patients, providers and other potential stakeholders in the program. With the original regs now overturned, the fate of these suits is uncertain.

"Our civil rights as Oklahomans were violated by the Oklahoma Department of Health yesterday," Chip Paul of Oklahomans for Health told the Tulsa World that day after the emergency regs were passed. "We had been working in good faith... There's no way we expected anyone to take away our right to smoke medical marijuana under 788. No way. If anyone thinks that reflects the spirit and intent of that law—well, it's not."

Such outrage did evidently sway the bureaucracy. Yet, even if by oversight, the new regs may also violate the spirit and letter of Question 788, which was approved in the June primary elections. Grounds for the litigation may still exist.

Cross-post to Cannabis Now 





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