Amid ongoing threats of legal challenges to emergency rules approved by the state Board of Health, Gov. Mary Fallin on Wednesday signed off on the temporary new regulations for State Question 788.
She conceded that she expects modifications to occur in the future on an issue that is “uncharted territory” for the state.
The board, in a 5-4 vote, authorized a last-minute amendment that bans the sale of smokable products and requires that a pharmacist be on staff at dispensaries. It did so against the advice of the state Health Department’s general counsel, Julie Ezell, who warned that the amendments could be the catalyst for litigation due to the text of the ballot measure that passed June 26.
“I know some citizens are not pleased with these actions. But I encourage everyone to approach this effort in a constructive fashion in order to honor the will of the citizens of Oklahoma who want a balanced and responsible medical marijuana law,” Fallin said in a statement.
Interim Oklahoma Department of Health Commissioner Tom Bates has stressed that the rules are temporary and a first step toward a more permanent framework. Bates also said he expected legal action regardless of what the Board of Health decided to approve.
Fallin had 45 days to approve or reject the board’s efforts. Her approval means the regulations, which are still emergency in nature, will be applicable once SQ 788 goes into effect July 26.
They will remain on the books either until the Legislature takes action to disapprove them, until they are superseded by permanent rules or until they expire in mid-2019, according to rules set in the state Administrative Procedures Act.
“These rules are the best place to start in developing a proper regulatory framework for medical marijuana, with the highest priority given to the health and safety of Oklahomans,” Fallin said. “They are also the quickest and most cost-efficient way to get the process actually started as required by the law passed by the people.”
But multiple cannabis industry proponents contend the regulations aren’t what Oklahomans truly voted for during the June elections. ACLU Oklahoma leader Ryan Kiesel on Tuesday went so far as to say the board’s decision “guarantees” lawsuits.
“We had been working in good faith with the Department of Health,” Chip Paul, co-founder of Oklahomans for Health, said Wednesday during a news conference in Owasso with the Oklahoma Cannabis Trade Association.
“We had been working really hard on trying to get these regulations right. Yesterday, the Department of Health Board … just literally spit in our face.”
Paul questioned the rationale behind the requirement to have pharmacists at dispensaries, noting they would put their licenses at risk if they dispense Schedule I drugs while on the job.
Members of the trade association also said they were frustrated at one Board of Health member, Charles Skillings, proposing an amendment that imposed a ban on smokable products without opening the matter up for public comments at the meeting.
“If the OSDH or the board or whoever’s behind this thinks that we’re going to take this, that is wrong, wrong, wrong thinking,” Paul said. “We certainly will pursue our legal options here.”
Ray Jennings, a board member of Oklahomans for Health and a cancer survivor, said the ban on smokable medical marijuana sales is a “non-starter” patients can’t afford.
“I tried every nausea medicine known to man. None of it worked,” Jennings said of his fight against stage four squamous cell carcinoma. But once he smoked marijuana using a pipe, he said his body calmed down within minutes.
“If I had to do an edible, it would have never worked for me,” he said, adding that he struggled to swallow during the lowest points of his illness. “But once I realized that (smoking) worked, it was an ‘oh-ho’ moment. There’s something to this. Without that I would be dead, no doubt.”
Paul said the approved THC percentage limits — 12 percent for medical marijuana products at dispensaries and 20 percent for homegrown plants — are the functional equivalent of 3.2 percent beer and limit doctors’ ability to help patients such as Jennings, who called the caps “unacceptable.”
Jeb Green, political director for New Health Solutions Oklahoma, another trade group for cannabis industry entrepreneurs, said Fallin’s refusal to heed the group’s calls for a special legislative session has resulted in the fledgling program falling under the control of “a group of bureaucrats.”
The group did not explicitly say whether it was presently contemplating legal action.
“The people making policy now are the same people who ran a million-dollar smear campaign aimed at convincing Oklahomans that smoking medical cannabis would lead to the collapse of society,” Green said in a statement.
Democratic gubernatorial nominee Drew Edmondson, in his own statement, said the rules “represent yet another failure of government” and show how Fallin and legislators have ignored voters. He said the ban on smokable marijuana sales will undoubtedly draw a court challenge and pointed out a Florida court has ruled such a restriction unconstitutional.
Fallin, however, reiterated her stance that it would be unrealistic to expect the Legislature to pass comprehensive regulation of SQ 788 during a special session. The Oklahoma Department of Health created the Oklahoma Medical Marijuana Authority to handle implementation and licensing applications, which are set to be accepted beginning Aug. 25.
“The state question placed an accelerated implementation period upon the Oklahoma State Department of Health, which is required to start the application process by July 26 — just two weeks away,” Fallin said.
“Dealing with medical marijuana is uncharted territory for our state, and there are many opinions, including divisive views even among SQ 788 backers, on how this should be implemented. Discussions have been going on the past few months in and outside the Capitol with no clear-cut agreement. I appreciate the hard work of Interim Health Commissioner Tom Bates and his staff, who take seriously their responsibility to protect the health and safety of all Oklahomans.”
The Board of Health will move toward an advisory capacity effective Jan. 14, 2019, rather than a rule-making body due to HB 3036, which Fallin signed into law in May. It will still have nine members who are appointed by the governor and confirmed by the Senate for nine-year terms unless otherwise stated.
The law also mandates that the post of Health Commissioner, who will assume all duties and powers of the board in 2019, will be a direct appointment by the governor.