For more than a year, the legality of Oklahoma’s medical cannabis program rested on the text of State Question 788 and emergency rules approved by state agencies. But this week House Bill 2612, an extensive regulatory framework known as the “Unity Bill,” and accompanying bills are in effect, creating new requirements for patients and business owners.
HB 2612 was largely the product of three months of meetings between industry members, advocates and a bipartisan, bicameral medical marijuana legislative working group. House Majority Floor Leader Jon Echols, R-Oklahoma City, was a primary sponsor, as was Sen. Greg McCortney, R-Ada, working group co-chairman.
“We pulled it off last summer,” Oklahoma Medical Marijuana Authority Executive Director Adrienne Rollins said Thursday. “That same push and momentum from last summer has been the driving force for us again to get ready.”
She said the OMMA projected it would cost about $15.6 million to oversee the state’s medical cannabis industry for the current fiscal year; the state has collected about $45 million in license fees and tax proceeds since August 2018.
Changes for patients
HB 2612 gives explicit rule-making power to the OMMA. The law protects licensed patients’ rights to own firearms despite federal law barring what it deems as “illegal drug users” from lawfully possessing guns; however, Echols has said he has not heard of federal prosecutions for such a violation in other medical marijuana states.
A portion of the law allows employers in “safety sensitive positions” such as firefighting, heavy machinery operation and hazardous materials to consider an employee’s patient status when making hiring decisions. Employers can lawfully take action against staff who are under the influence at work, but patients with jobs not deemed “safety sensitive” remain protected from discrimination if it is on the sole basis of having a patient license or a positive drug test for THC.
The law also now prohibits doctors approving patient recommendations while inside a business such as a dispensary. Doctors also now have the power to request that OMMA terminate recommendations they provided in support of a specific patient’s license, and HB 2612 was amended by Senate Bill 1030 to allow “any physician of the licensee” to access the OMMA’s database of patient information.
Lawrence Pasternack, a leader of the Oklahoma Cannabis Liberty Alliance, said the clause amending HB 2612 is concerning for patients who went to cannabis-friendly doctors for recommendations instead of using their primary care physicians. He said a stigma relating to cannabis use for medical reasons persists even though it is now legal in the state.
“What people will do is they will use marijuana for the first couple weeks of each month and stop for the next couple weeks,” he said of his observations. “There are a lot of pain management patients who are using (cannabis) behind their doctor’s back, and if they get caught, they could get terminated.”
New business requirements
Business applicants are now required to include a certificate of compliance from their respective jurisdictions that discusses zoning along with fire, waste and building codes. The OMMA now has up to 90 business days to review business license applications and renewal requests; the deadline for approving or rejecting patient applications changed slightly to 14 business days. The OMMA began accepting renewal applications through its online portal on Friday.
Additionally, the new law states businesses must implement seed-to-sale tracking, which McCortney and other lawmakers have said will mitigate the chances for illegal product diversion into the black market.
HB 2612 also updates packaging and labeling requirements, indicating labels must have information on product potency and whether they have been tested for contaminants. A ban on packaging that could appeal to children has been in place since emergency rules were enacted in August 2018.
“We’ve actually sent out ... messaging so they know what to expect as far as how to renew their licenses and hopefully offering them some comfort,” Rollins said of OMMA’s contact with businesses.
SQ 788 and subsequent legislation indicate municipalities cannot “unduly restrict” cannabis businesses from opening within their jurisdictions, but Tulsa attorney Ron Durbin said the new certificate requirement could become the subject of a legal challenge.
“The state and OMMA did not do any kind of work to give cities or counties any kind of guidance on what it is they’re looking for,” he said. “Many cities and counties did not institute ordinances related to this, so they’re left in confusion on what they’re being asked to do. Even if you’re perfectly legal and operating for a year, it’s possible you can’t get your license renewed because your city or county could just refuse to sign it.”
Bud Scott, who leads the Oklahoma Cannabis Industry Association and sits on the Food Safety Standards Board, said he also has concerns about what the state is now asking of businesses. As an example, he said HB 2612 requires product testing to be conducted by a properly licensed laboratory — but applications for laboratory licenses aren’t yet available.
He also noted there is a mandate in Senate Bill 162 and in the OMMA’s newest set of emergency rules, which take effect Sept. 14, ordering growers and processors to separate their harvests in 10-pound batches and test samples from each one. He said that requirement could become cost-prohibitive for many businesses.
Rollins said the OMMA will give businesses time to get in compliance and staff members will reach out to businesses to assist them with understanding the new requirements. However, Scott said: “We specifically asked for firm language saying there would be a grace period, which was not included. There’s some pretty serious issues with testing that still have to be addressed.”