The Oklahoma State Department of Health will participate in a question-and-answer session Wednesday with the bipartisan, bicameral working group assigned to handle medical marijuana regulations.
Although the group cannot enact policy until the Legislature is in session, Interim Health Commissioner Tom Bates has said there were “some gaps” in the newest iteration of emergency rules that lawmakers should address.
Buffy Heater, chief of data, public policy and promotion for the Health Department, said Friday that the board was unable to enact rules it wanted on three major issues: laboratory testing, product recalls, and product packaging and labeling.
Heater is also overseeing implementation of the Oklahoma Medical Marijuana Authority, a regulatory office created by the Health Department, until a director is selected.
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The Board of Health voted unanimously last week to adopt a new, shorter set of emergency rules while rescinding a ban on smokable medical marijuana sales, limits on THC content for products and a requirement for pharmacists to work at dispensaries during operating hours.
“In the most recent version of the rules, (laboratory testing) was removed in its entirety because State Question 788 didn’t provide for a testing framework,” Heater said. “That’s a huge gap. It means there’s no safeguard on the product that’s going to be there for the public.”
Heater said it is also essential for commercial entities to have the ability to recall products found to be a safety risk, as well as for them to follow standardized packaging and labeling criteria and ensure that products are child-safe and tamper-resistant.
“The length and specificity (of the labeling rules) went away,” she said. “From a public health standpoint, we would want to see those requirements brought back.
“It’s our understanding that these things are outside the Health Department’s authority as it exists now. In our opinion, these are things that would require legislative and statutory action.”
Gov. Mary Fallin has until mid-September to decide whether to sign off on the rules the Health Board approved last Wednesday. If she does, they will supersede the regulations approved by the Health Board on July 10, which she signed the next day. Fallin must consider the emergency rules as a whole and can’t approve or disapprove parts of them but not others.
The new rules, if signed, will remain in effect until either the Legislature or the Health Department takes further action, with an expiration date in September 2019 if neither of those occur.
Oklahomans for Health co-founder Chip Paul, who has been a guest of the legislative working group, said advocacy groups met with Health Department officials last month to push for language outlining product testing requirements, none of which made it into Wednesday’s draft. Oklahomans for Health, along with organizers who now operate under the name Oklahoma Cannabis League, was involved in writing SQ 788.
“We didn’t specify testing under 788, but in all of our discussions we said, ‘Testing needs to be there.’ They completely stripped everything that we suggested out,” Paul said of the issue. “I think that’s horribly irresponsible for the Health Department not to even have a suggestion of testing (in the rules). Right off the bat, the Legislature needs to address that, whether that’s in January or before.”
New Health Solutions Oklahoma Executive Director Bud Scott said it was clear that the Health Department “whittled it down to such a small framework” because they weren’t given any power regarding laboratory criteria. However, he said there should be regulations for lab testing because it is in the interest of public health to have safe products on the market.
“We have this legislation that didn’t spell everything out right, and we’re trying to jump to rules and implementation without having that intermediate step where we provide everything else,” Scott said.
“This is a necessary process. We’re all trying to implement the will of the people and stay consistent with State Question 788, but in policy-making, it’s important that we take our time and do this right without unnecessary delay.”
Green the Vote, through its attorney, Ron Durbin II, also provided a proposal to the working group. Durbin, who is representing Green the Vote in its lawsuit against the Health Department, has been a strong opponent of the Health Department’s actions, alleging that the rules adopted last Wednesday hamper entrepreneurs because of language that incorporates the Oklahoma Public Health Code and parts of the Oklahoma Administrative Code.
Bates said Wednesday that his agency addressed Durbin’s concerns by releasing an amendment that points out that SQ 788 would be the controlling statute if any part of either code conflicts with the ballot measure. Heater said she would support the Legislature’s making amendments to the codes if needed for the sake of clarity.
Working group Co-Chairman Rep. Jon Echols, R-Oklahoma City, said Friday that the committee looks forward to hearing about what the Health Department needs from the Legislature. He said he would like to have later talks with employers and law enforcement regarding SQ 788 before the committee decides a course of action.
Heater said she also wants to showcase on Wednesday “the amazing amount of very good work the Health Department has done to come this far in such a short timeline.”
“They have done a lot of work in this implementation, and getting to discuss it with them will be invaluable,” Echols said. “The legislative members are not experts on the medical marijuana industry. We need the Health Department and those that want to be in the industry to help us so we can regulate this product.”
Scott said Friday that he thinks the Health Department and Bates did their best to try to put a program in place but that “they’re trying to do this with one hand tied behind their back.” Scott’s organization has taken part in meetings with the working group and has been among the most vocal to call for a special legislative session regarding SQ 788.
“When you’re not granted the appropriate language or authority to actually adopt rules by statute, then you’re operating without much control or ability to respond,” he said, adding that the limited powers given to the OSDH were why NHSO considered it necessary to present its own proposed regulations to lawmakers.
Echols said the working group process has moved faster than expected but cautioned against expectations of a quick resolution, as “the legislature moves slowly by design. What we do is create laws. We want a deliberate process.”
Scott said, though, that there has already been “a ton” of work done in the meetings and that “We’re getting the cannabis (advocacy groups) kind of on the same page and working toward an agreed proposal.”
Paul said various pro-medical marijuana groups have decided to meet next week so they can create a single set of regulations. When asked about that plan, Echols said, “I am thankful that they would do that, that they would actually get together to try to help work it out among subject matter experts. That would be extremely helpful to the Legislature.”
