More than half a million Oklahomans voted in favor of State Question 788 legalizing medical marijuana, making Oklahoma the 30th state in the nation to legalize the drug in some form. SQ 788 directed the Department of Health to issue rules governing the implementation of the law, and after a flurry of controversy and a do-over forced by Attorney General Mike Hunter, Governor Fallin signed new emergency rules on July 31.
The regulation process, however, is still incomplete. While the emergency rules implement the language of SQ 788, there are several areas, including laboratory testing of marijuana products, changes to law enforcement practices, and patient licensing procedures that remain unsettled because SQ 788 did not explicitly authorize the Health Department to create rules. To fill in those gaps, Governor Fallin directed a bipartisan group of legislators known as the Medical Marijuana Working Group to gather information on gaps in the law and form proposals to consider during the 2019 legislative session.
Based on the early comments of the Medical Marijuana Working Group, legislators favor a more “hands-off” approach to medical marijuana rules. The working group is trying to balance the concerns of law enforcement and public health officials with what advocates have called one of the least restrictive and most “patient-centered” medical marijuana ballot measures in the nation, and the next legislature will consider proposals to change and fill in regulations in 2019.
How legal pot works in Oklahoma
The Oklahoma Medical Marijuana Authority began issuing licenses for patients, caregivers and businesses on Saturday, August 25th. The agency reported more than 1,600 license applications and more than 1.5 million dollars in fees collected on that first day.
Licensed patients can possess up to three ounces of marijuana on their person, eight ounces at their residence, up to six mature marijuana plants, six seedling plants, an ounce of concentrated marijuana and seventy-two ounces of edibles. By comparison, it’s legal to possess only an ounce of marijuana (recreational or medicinal) in Colorado, and several states like Louisiana and West Virginia allow legal medical marijuana products but don’t allow smokable pot of any kind.
There are also relatively few regulations on marijuana businesses, including growers, processors, and dispensaries. Those applying for a business license must be at least 25, and their board members and managers must also be Oklahoma residents. The application fee for a commercial license is relatively low at $2,500. By contrast, there are firm limits on both the capital requirements and the number of marijuana business licenses in many other states. Oregon for example, has stopped processing new cultivation licenses completely in response to concerns of market oversaturation, and Arkansas presently limits licenses to applicants with at least one million dollars in assets.
Oklahoma’s process is more inclusive by design. One of the goals of SQ 788 was making the new industry widely available to local small business owners, according to the advocates who drafted the measure. The co-chairs of the Medical Marijuana Working Group Sen. Greg McCortney and Rep. Jon Echols, have expressed a desire to promote an open market driven by Oklahoma capital investment and accessible to a variety of local entrepreneurs.
Gaps in the law have created confusion for law enforcement and regulators
At the August 15th meeting of the legislative working group, representatives of the police, the District Attorney’s Council and the Oklahoma Bureau of Narcotics expressed concern about the law’s internal conflicts and unforeseen consequences. For example, SQ 780 reclassified most simple drug possession crimes as misdemeanors punishable by up to a year in prison, while SQ 788 calls for a $400 fine and no jail time for illegal possession of up to 1.5 ounces. Prior to SQ 780 first time simple possession of marijuana was usually a misdemeanor, but the difference between these statutes still leaves local police uncertain of which law to follow.
Allowing licensed patients to grow and carry amounts of medical marijuana beyond what’s allowed in other states also concerns law enforcement. Oklahoma Bureau of Narcotics Director John Scully told the working group that he believes these loose restrictions will create an enormous black market and dramatically increase DUI rates. However, it’s not clear that this is the case. Data on the black market effects of legalization are difficult to track, but one recent report shows that three years after legalization, there was no statistically significant difference between the rates of DUI crashes in these states than those without legalization.
Interim Health Commissioner Tom Bates testified before the working group that lab testing of marijuana represents another serious concern for policymakers. “I think it’s important to remember, these are things that people will be ingesting into their body. We want to do all we can to make sure that product is safe for human consumption and that it’s not adulterated or contaminated in any way. The only way to do that is to have some kind of testing structure,” Bates said. Some marijuana businesses will likely create their own testing and safety process, but without a common regulation, there’s no standard method to ensure patient safety. The questions of product recall, contamination and drug quality will remain very open until the legislature resolves them.
Legislators must balance advocates’ intent and the realities of regulation in 2019
“788 is unique among existing regulatory frameworks.” SQ 788 author Chip Paul said. “It is the first medical marijuana question in any state which does not specify conditions for which a doctor can prescribe marijuana.” His goal in writing SQ 788 was to create a patient-centered framework, which favored the doctor-patient relationship over rules written by government.
To that end, on August 17th, six grassroots Oklahoma Cannabis groups drafted consensus legislation to enshrine their perspectives on this regulatory framework into law. However, not all pro-SQ 788-advocacy groups signed on. Oklahomans for Cannabis, for example, recently offered their own piece of sample legislation called “The Care Act” for public comment. Oklahomans for Cannabis objects to landlord restrictions and licensing provisions put forward by the other groups. SQ 788 advocates agree on the necessity of a patient-centered application of the new rules, but they still differ on a number of the provisions surrounding business practice and enforcement.
Legislators will ultimately have to settle these issues with the new law next year. Police and District Attorneys still need clarity on whom to arrest or prosecute. Some marijuana advocates and potential business owners have called for a special session to settle their differences. Interim Health Commissioner Tom Bates has called for a special session as well, but Governor Fallin has yet to call for one. For the time being, District Attorneys and police will likely have to simply use their arrest and prosecutorial discretion to resolve the SQ 780 and SQ 788 conflicts. Legislators wary of voter discontent seem satisfied with adopting the Department of Health’s emergency rules temporarily, but they will have to confront all of these issues in 2019.