Attorney general advises health board to amend medical marijuana rules

OKLAHOMA CITY – Following a controversial decision by the Oklahoma State Board of Health, the Oklahoma Attorney General’s Office is advising the board to change its ruling.

Last week, the Board of Health approved emergency rules on medical marijuana, with two specific exceptions.

Under the new emergency rules, smokable forms of medical marijuana would be banned from being sold in dispensaries. According to Interim Health Commissioner Tom Bates, licensed medical marijuana users would still be allowed to use it if it was grown themselves.

“To allow smokable forms would be a step back as protectors of public health in Oklahoma and certainly reasonable people can differ on that,” Commissioner Bates said.

Immediately after the rules were announced, medical marijuana advocates called for a change.

"[The voters] knew what they were voting for. No disrespect to anybody that claims they didn't, but that's not the case. You do not outweigh the will of the people," said Chance Gilbert, with the Oklahoma Cannabis Trade Association. "The rule of law in our nation is democracy. And the democracy is not being upheld right now."

Late last week, two lawsuits were filed against the Oklahoma State Department of Health due to the rules.

On Monday, Oklahoma Attorney General Mike Hunter said that his office would review the legal challenges to the agency's rules on State Question 788.

Just two days later, the attorney general's office announced that it was advising the State Board of Health to convene a special meeting to amend the rules it passed regulating medical marijuana.

“The current rules contain provisions that are inconsistent with the plain language of State Question 788 and the State Board of Health acted outside of its authority when it voted to implement them,” Attorney General Hunter said. “Although I didn’t support State Question 788, the people of the state have spoken and I have a legal duty to honor the decision made by the electorate. My advice today is made pursuant to that responsibility as attorney general. Moving forward, I encourage all stakeholders to engage with the legislative working group looking at medical marijuana to ensure they have their concerns and recommendations heard and addressed by the legislature.”

Hunter says the board's role in limiting the forms of marijuana products is confined to food and safety standards that are in line with food preparation guidelines, not prohibiting the sale of smokable, vapable, edible or other forms of marijuana.

The attorney general's office also said that they took issue with the board's action to require dispensaries to hire a pharmacist.

"The board has not been given any express or implied statutory authority to impose additional requirements on licensees. Thus, the board rules improperly require every licensed dispensary to have 'a current licensed pharmacist' present 'on-site at least 40 hours per week.' Nothing in the text of State Question 788 expressly or impliedly authorizes this rule,” Hunter said.

Other concerns outlined in the letter to the board are as follows:

  • Restricting dispensaries to limited locations
  • Prohibiting dispensaries from co-locating with other businesses
  • Requiring medical marijuana be grown, processed and dispensed in enclosed structures
  • Requiring a surety bond for licensing
  • Setting hours of operation
  • Limiting the amount of THC in flower, leaf or concentrate for sale or distribution.

“I have no doubt that the board in good faith sought to regulate marijuana in a manner it believed would best promote the health and safety of Oklahomans,” the letter concludes. “However, in so doing, the board made policy judgments not authorized by statute. Such policy decisions are the exclusive prerogative of the legislature and the people.”

To read the full letter, click here.