Oklahoma House and Senate leadership signaled their dissatisfaction with the State Board of Health’s new medical marijuana rules Thursday by announcing the creation of a “working group” to come up with a way to implement State Question 788 in a “manner that conforms to the will of the voters.”
Meanwhile, the House Democratic Caucus advocated for a special legislative session, citing its belief that it would be “an act of complicity” on the part of the Legislature to let the emergency rules stand as-is.
Oklahoma House Speaker Charles McCall and Senate President Pro Tempore-designate Greg Treat issued a joint statement Thursday afternoon announcing the creation of a bipartisan group of legislators to “determine a path forward for implementation” of the state question.
“The Oklahoma Senate will not undo the will of voters, who spoke loudly by passing State Question 788,” said Treat, R-Edmond. “While the Health Department and its commissioner did yeoman’s work in drafting emergency rules, the Board of Health’s adoption of last-minute amendments without public comments has undermined the public’s confidence in the system.”
The State Board of Health on Tuesday, in a 5-4 vote, made a last-minute amendment to more than 70 pages of emergency draft rules that bans the sale of smokable medical marijuana products. In an 8-1 vote, the board also opted to require a pharmacist to be on-site to dispense prescriptions to licensed patients or caregivers.
Both amendments drew outrage from cannabis industry advocates and stakeholders who called the decisions, made without public comment during the board meeting, a violation of the spirit of SQ 788. Gov. Mary Fallin, who had 45 days to decide whether to approve the emergency rules, signed off on them Wednesday afternoon, meaning they will be in effect when SQ 788 becomes law on July 26.
From there, the Legislature can act to disapprove them when it next meets. The rules can be superseded by permanent regulations and will expire in mid-2019, according to the state’s Administrative Procedures Act.
As of Jan. 14, 2019, the Board of Health will become an advisory rather than rule-making body, with its rule-making powers transferring to the Health Commissioner, according to HB 3036, which Fallin signed into law in May.
New Health Solutions Oklahoma political director Jed Green, whose group represents some members of the medical cannabis industry, called Thursday’s announcement “encouraging” and said he was glad to see the Legislature recognize there has been “an abject failure of leadership” by the executive branch.
“You have a board of health that, by a 5-4 vote, overrode even their own legal counsel,” Green told the Tulsa World in a phone interview. Health Department General Counsel Julie Ezell had warned the board that the amendments it ultimately passed could lead to legal action based on the public’s interpretation of the text of SQ 788.
“Given what the board just did, they need to be in an advisory capacity only,” Green said. “The fact of the matter is that given the blatant disregard (for the public) and the illegality of what’s been going on, there’s going to be a lawsuit. Where that’s going to come from, though, I’m not sure.”
McCall and Treat did not signal whether there would be a special legislative session on the matter, but the House Democratic Caucus, in its own release, called on Fallin to convene one or, if she still refuses, for legislators to use the two-thirds provision in the state constitution to bring themselves back to the Capitol.
Fallin has said she believes it is “not realistic” to have a full regulatory structure completed during a special session. NHSO has repeatedly urged Fallin to order a special session and did so again on Thursday.
“We support the idea of a bipartisan working group only if a date for a special session is chosen. Otherwise, we feel that the working group would be nothing more than a political stunt to ease the justified outrage of Oklahoma voters,” Minority Leader Steve Kouplen, D-Beggs, said. Kouplen said the majority of the House Democratic Caucus supported SQ 788, but even those who did not are frustrated at the board of health’s actions.
“All members of the House Democratic Caucus feel that allowing the Oklahoma Department of Health rules to stand would be an act of complicity by this body to undermine the will of the people, and we feel that is unacceptable,” he said.
McCall and Treat said they will announce members of the working group early next week.
“This group will begin evaluating the Department of Health’s recently adopted and approved rules and meeting with the governor’s office, medical marijuana industry representatives, Health Department officials, health care providers and other stakeholders to determine the best approach forward,” McCall said.