Gov. Mary Fallin on Monday signed the revised emergency rules the Oklahoma State Board of Health adopted last week for medical marijuana, saying her approval of the “basic” framework given to her “moves medical marijuana to the realm of our Legislature.”
The state Board of Health voted unanimously Wednesday in favor of emergency rules that, most notably, rescinded controversial regulations that banned smokable medical marijuana sales, mandated a cap on THC content in products and required a pharmacist on-site at dispensaries. There is also no longer an expressed requirement for women of “childbearing age” to take a pregnancy test as a condition of receiving a physician’s recommendation for medical marijuana.
Fallin’s signature means the rules supersede the set she approved on July 11 — one day after the board presented her office with the proposal, which contained last-minute amendments regarding smokables and pharmacists. However, lawsuits filed July 13 in Cleveland and Oklahoma counties over the Health Board’s previous actions remain pending.
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The new framework will remain in place until further action either by the Legislature or the Health Department. If neither occurs, the emergency rules will expire in September 2019.
The last-minute additions announced during the July 10 board meeting drew bipartisan outrage, prompting the creation of a legislative working group two days later. Attorney General Mike Hunter, in a July 18 letter to Interim Commissioner Tom Bates, recommended the Health Board make changes because it went beyond its legal authority as outlined in the ballot initiative.
Although Fallin — who does not have the option to approve or disapprove the rules in part — signed off on the July 10 version of the rules, she later joined Hunter’s call for revisions to them. She called the new rules “very basic” but said they “represent the best option in developing a proper regulatory framework for medical marijuana.”
“These rules do not include the two last-minute amendments to the initial rules that I asked the Board of Health to rescind because the public didn’t have sufficient time to review and comment on them,” Fallin said in a statement explaining her decision. “I appreciate the board’s decision to concur with my request. They also follow the guidelines from the attorney general on staying within the jurisdiction of statute language of State Question 788.”
Senior Deputy Attorney General Tom Gruber, who attended last week’s Health Board meeting, announced shortly before the vote Wednesday afternoon that the 20-page draft had the approval of his office.
Oklahoma Medical Marijuana Authority project leader Buffy Heater told the Tulsa World on Friday that the board determined that the current text of SQ 788 didn’t give members the power to include regulations it wanted to incorporate for public health purposes. She said the department would still like to see rules relating to laboratory testing requirements, recall procedures and product labeling.
The Health Department created the OMMA as a regulatory office to handle licensing applications and oversee the new industry. License applicants will, according to the OMMA, be able to apply online beginning Aug. 25.
The Health Department will meet Wednesday morning with the legislative working group to discuss its work on implementing SQ 788. Working group Co-Chairman Rep. Jon Echols, R-Oklahoma City, said Friday that the committee is also looking forward to hearing about what the Health Department needs from lawmakers so it can oversee the program effectively.
Fallin’s Monday statement stopped short of expressing any opinion regarding a special legislative session. However, she said she was pleased that the bipartisan, bicameral group of lawmakers has held weekly meetings to move the state forward in developing “the intent of what the public voted for with the passage of State Question 788 — making marijuana available to Oklahomans who need it solely for medical reasons.”
“There are many opinions on how medical marijuana should be implemented in our state,” Fallin said. “I encourage vivid discussion to develop policy proposals to make sure we have a medical marijuana regulatory framework in place that improves the health of Oklahomans who are sick and makes the business side work while protecting the safety of Oklahomans.”
Jed Green, political director of the trade group New Health Solutions Oklahoma, said Monday evening that the small scope of the newly adopted regulations are proof of the need for a special legislative session. A spokesman for Fallin said before the June 26 election that she intended to call one if SQ 788 passed, but Fallin reversed course by the end of June, saying she had confidence in the Health Department’s ability to handle the matter until the Legislature meets next year.
But Green said that “the regulations approved just don’t help. While consumer protection is the job of the attorney general, apparently he has again signed off on regulations that do not provide for testing of a medical product. How is that safe?
“Let’s get serious: until the Legislature passes more statutes, the OSDH does not have the ability to do their job.”
He said the lack of language on laboratory testing, which had appeared in earlier emergency rules drafts, puts patients at risk — a view shared by other prominent pro-medical marijuana groups.
Alex Gerszewski, Hunter’s press secretary, noted Monday night that the Attorney General’s Office does not have the power to make or amend laws.
“Our rulemaking recommendations followed the law, SQ 788, passed by voters,” Gerszewski said. “The only public bodies who can modify SQ 788 are the members of the Legislature or the electorate.
“We encourage those with concerns to engage with the legislative working group looking at medical marijuana to ensure they are heard.”
