State health board members voted Tuesday to approve food safety standards for medical marijuana processors, but Attorney General Mike Hunter says he’s determined that further changes to the law created by State Question 788 should come from the Legislature.
The Medical Marijuana Food Safety Standards Board, created upon the passage of SQ 788, met in August to approve requirements that processors must follow while making cannabis-infused foods. The 12-member panel then provided its recommendations to Board of Health members, who approved them unanimously during a live-streamed meeting in El Reno Tuesday morning.
The rules will now go to Gov. Mary Fallin, who must approve them in order for them to take legal effect.
The standards in part incorporate existing regulations on other food products made and sold in the state. However, food infused with cannabis has more detailed criteria and tests with which to comply. Examples include requirements to test for potency of cannabinoids and to test for the presence of heavy metals, chemical residue and pesticides.
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A health board member asked during the meeting how the food safety board’s work fits into the parameters of the legal authority that Hunter outlined in a letter on Monday. In response, Health Department Chief Operating Officer Kim Bailey said the Attorney General’s Office concluded that SQ 788 makes specific requests of processors. She said Hunter’s office reviewed the food safety board’s proposals in advance.
“Also, with the Legislature going into session, it is more expedited for the testing to go into effect if the Legislature takes it up. And it will also avoid more litigation,” Bailey said, referencing lawsuits filed over the health board’s past handling of emergency rules. “There are several cases pending, as well, and it would probably delay the full testing if you were to go that route.”
In the letter, Hunter said he has “full confidence” that the state will prevail in court. But in advocating for legislative over regulatory changes, he said it’s unlikely that the lawsuits will be resolved before lawmakers next convene.
A bipartisan, bicameral working group also met separately a dozen times this year, most recently on Oct. 10, to discuss the new law. The group agreed on about a dozen pages of rules that address packaging and labeling requirements, provided information on laboratory accreditation and outlined how products should be tested.
“In setting up a medical marijuana system, Oklahoma is doing in a few months what most states take years to complete,” wrote Rep. Jon Echols, R-Oklahoma City, and Sen. Greg McCortney, R-Ada, in a different letter given to the Tulsa World on Tuesday.
While the co-chairmen told the Health Department they were proud of the committee, they said “more work is still necessary and we will continue our efforts to implement a safe and effective system to help Oklahomans gain access to medicine.”
Hunter said he had concerns about the health board’s adopting the working group’s regulations because of limits in authority currently granted by the state question. He previously sent the Oklahoma State Department of Health a letter in mid-July indicating that the health board had overstepped its authority when it approved more restrictive emergency rules.
The board reversed itself in a special meeting Aug. 1.
Hunter said he believed many of the working group’s recommendations still “appear to exceed the bounds” of the health board’s power because they don’t have a direct relationship to existing food safety or preparation standards.
The legislative working group could not create laws during its meetings, as the Legislature was not in session.
Lawmakers promoted testing of all products for various cannabinoids and terpenes, the latter of which Hunter said are an indicator of medical quality rather than an estimate of food safety risks.
McCortney said in October that giving the guidelines to the health board appeared to be the fastest route to ensure safety standards were in place before an influx of products hit the market. The working group previously showed support for a special session in the event the health board avoided taking up its recommendations.
“I am very proud of the hard work done not just by my co-chair, Greg McCortney, and myself, but what was done by the entire bipartisan, bicameral committee,” Echols said Tuesday afternoon. “I’m proud we were able to make unanimous testing and labeling recommendations. I respect the decision today by the Board of Health and anticipate we pass these regulations via statute early in session,” which begins in February.
The health board will become advisory only as of mid-January. Its rule-making powers will be transferred to the commissioner of health.
