Health board to call special meeting to consider amending medical marijuana rules

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The Oklahoma State Board of Health plans to hold a special meeting to consider amending the rules regulating medical marijuana.

Oklahoma Attorney General Mike Hunter on Wednesday advised the board to convene a special meeting to amend the rules it passed regulating medical marijuana.

Officials with the health board released the following statement,

“The Board of Health appreciates the quick review by the Attorney General and acknowledges the advice and counsel regarding the prior adoption of emergency rules on State Question 788. The legal analysis by the Attorney General provides clarity on several rules and the legal authority we have to construct a regulatory framework for a state-wide medical marijuana program.

I have asked Commissioner Bates and his staff to make sure the appropriate modifications are made as outlined by the Attorney General in today’s correspondence. The Board of Health will call a special meeting to consider these changes as soon as possible.

The OSDH staff has done an incredible job to prepare for implementation of this program and we want to make sure they have clear direction to meet the deadlines outlined in the state question and administer this new program.”

During the primary elections on June 26, Oklahomans voted to approve State Question 788, legalizing medical marijuana in the state. The Oklahoma State Board of Health then passed strict regulations, including banning the sales of smokable medical marijuana at dispensaries and requiring a pharmacist at dispensaries.

Gov. Mary Fallin signed the rules. At least two lawsuits were then filed against the state health department over the rules. At the request of health officials, Hunter said his office would review legal challenges to the health department.

Hunter on Wednesday said his advice is faithful to and in accordance with the new law created when Oklahomans voted in favor of State Question 788.

“The current rules contain provisions that are inconsistent with the plain language of State Question 788 and the State Board of Health acted outside of its authority when it voted to implement them,” Hunter said. “Although I didn’t support State Question 788, the people of the state have spoken and I have a legal duty to honor the decision made by the electorate. My advice today is made pursuant to that responsibility as attorney general.”

“Moving forward, I encourage all stakeholders to engage with the legislative working group looking at medical marijuana to ensure they have their concerns and recommendations heard and addressed by the legislature,” Hunter said.

In a letter sent Wednesday to Health Department Interim Director Tom Bates, Hunter writes that the board’s role in limiting the forms of marijuana products is confined to food and safety standards that are in line with food preparation guidelines, not prohibiting the sale of smokable, vapable, edible or other forms of marijuana.

Hunter said he also took issue with the board’s action to require dispensaries to hire a pharmacist, writing, “The board has not been given any express or implied statutory authority to impose additional requirements on licensees. Thus, the board rules improperly require every licensed dispensary to have ‘a current licensed pharmacist’
present ‘on-site at least 40 hours per week.’ Nothing in the text of State Question 788 expressly or impliedly authorizes this rule.”

According to the AG’s office, other concerns outlined in the letter include:

  • Restricting dispensaries to limited locations
  • Prohibiting dispensaries from co-locating with other businesses
  • Requiring medical marijuana be grown, processed and dispensed in enclosed structures
  • Requiring a surety bond for licensing
  • Setting hours of operation
  • Limiting the amount of THC in flower, leaf or concentrate for sale or distribution

“I have no doubt that the board in good faith sought to regulate marijuana in a manner it believed would best promote the health and safety of Oklahomans,” the letter concludes. “However, in so doing, the board made policy judgments not authorized by statute. Such policy decisions are the exclusive prerogative of the legislature and the people.”

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