The way it was written, SQ 788 became effective July 26, with the state mandated to start accepting patient applications just a month later. With the Legislature adjourned, state leaders opted not to meet in a special session to address gaps in the medical marijuana measure. That decision meant Oklahoma’s medical marijuana industry would be built on the foundation created by the authors of SQ 788, which did not seek to be comprehensive but instead establish as a priority the needs of patients to get immediate access to cannabis treatments.
The result? Five months later, more than 24,000 patients have been licensed by the Oklahoma Medical Marijuana Authority, and more than 2,000 business licenses granted. Dispensaries began selling THC-rich products in November, about the same time many patients were able to harvest their first legally home-cultivated cannabis.
Rule changes controversy
With a special session off the table, the state Board of Health was the agency tasked with evaluating and approving emergency rules that would ensure the timely start of Oklahoma’s medical marijuana program. However, its statutory authority to make substantive changes to SQ 788 in the emergency rules was challenged by Attorney General Mike Hunter. Gov. Mary Fallin had signed off on the board’s amendments requiring a pharmacist in every dispensary and prohibiting smokable forms of cannabis from being sold to patients, but the board later rescinded those amendments on Hunter’s guidance.
Doctors signing off, hospitals opting out
Several Oklahoma health care systems said their doctors would not recommend medical marijuana, so many patients had to find a new physician to pursue cannabis treatment. Before scheduling appointments with a physician about getting a medical marijuana recommendation, patients should inquire as to the doctor’s board-certified status per the state Health Department regulations. Doctors are prohibited by federal law from “aiding and abetting” the procurement and consumption of marijuana, so patients should not expect to hear from their physician on treatment dosages, deliveries or specific strains.
Legislative working group
The group proposed rules including packaging and labeling standards, requirements for warning labels on untested products, standards for laboratory accreditation, and retesting criteria for products that fail on screens for impurities, chemicals, pesticides and metals. The rules also would allow for dispensary sales of mature cannabis plants. The lawmakers in the group pushed for a special session to get testing and labeling standards in place before dispensary sales began, but it never happened. The Medical Marijuana Food Safety Standards Board developed board-approved requirements for processors to follow while making cannabis-infused foods, which went to Gov. Fallin’s desk Dec. 12.
Local ordinances and legal challenges
After one of the first local ordinances restricting medical marijuana in Oklahoma drew a legal challenge, city attorneys started warning their councils about “the Broken Arrow approach.” A lawsuit filed over Tulsa’s proposed ordinance prompted the city to make several tweaks in concert with the plaintiff’s attorney. Some smaller municipalities took a hardline approach and outright banned most commercial marijuana operations within their cities. After plaintiffs’ challenges in Yukon and Sulphur, a fifth lawsuit over restrictive local ordinances was filed in Weatherford in October.
Restrictions also are affecting patients; in some cities, local ordinances require they register with the city to exercise their right to cultivate cannabis at home. In addition to an increased financial burden, these patients may also be subject to privacy violations, as local governments are not subject to HIPAA laws.
Patients’ Second Amendment rights came into the spotlight when an OSBI spokeswoman appeared in a TV news interview to say people who want to use marijuana must surrender their Self-Defense Act licenses and get rid of their weapons. Jordan Solorzano said federal law precludes any marijuana user from having firearms but doesn’t mean the department would be “going door-to-door trying to round guns up.” Medical marijuana patient license applications do not ask about gun ownership, and OSBI has no access to OMMA patient information. Rep. Jon Echols, co-chair of the legislative working group on medical marijuana, told a fellow lawmaker: “The way we’re gonna handle it in Oklahoma is the same way 29 to 30 other states that have medical marijuana handled it, which is essentially ‘We’re going to ignore the feds.’ ”
Issues with law enforcement
The first licensed patient to be arrested for simple possession, Regina Gist, was charged in Adair County after a traffic stop in which she was a passenger. But District Attorney Jack Thorp dropped the chargedespite the likelihood that Gist acquired the cannabis in an illegal purchase, not in a licensed dispensary. Patients celebrated the DA’s decision as an indication that even if local law enforcement officers continue to treat all marijuana users as criminals, SQ 788 will protect law-abiding patients from prosecution.
Marijuana and employment
SQ 788 says employers may not discriminate against patients in hiring or firing based solely on their status as a medical marijuana card holder. Nor may a patient be fired solely for testing positive for THC metabolites. Despite several complaints and rumors on social media about discriminatory employer practices, no legal challenges have been made public. One test came in the courts during a workers compensation case; appellate judges sided with a man injured in 2017 at work but who tested positive for THC. The Oklahoma Court of Civil Appeals said Nov. 17 that if the man had “used marijuana under a doctor’s order, as permitted by state law, the test would reveal the presence of the drug in his system, and yet the rebuttable presumption would not operate. The critical focus is not whether an intoxicating substance was present in the worker’s system, but rather whether there was a causal connection between the accident and a state of intoxication, from whatever source.” Attorneys have been helping employers craft new employment policies related to marijuana and drug testing.
Legislation still to come
Echols said in August he was working on a bill that would unite two measures pushed by advocate groups. The Unity Act had input from SQ 788 advocate group Oklahomans for Health and trade group New Health Solutions Oklahoma. The CARE Act came from Oklahomans for Cannabis, whose co-leader, Frank Grove, had involvement in writing SQ 788. Both groups said they felt their concerns were being adequately addressed in Echols’ efforts. “I think we have full faith that they will implement the legislation that we envisioned for 788,” Grove said of Oklahoma lawmakers working on medical marijuana as guided by Echols.
Fees and taxes
As of Dec. 24, OMMA approved license applications for 24,463 patients, 219 caregivers, 799 dispensaries, 1,284 growers and 336 processors. Revenue collected from the 7 percent gross receipts tax has not yet been determined, according to the agency. As of Dec. 10, OMMA collected about $8.3 million in application fees, more than enough to cover costs the agency incurred during its efforts to implement the program. Interim Health Commissioner Tom Bates told lawmakers in August his department at that time had used about $3.5 million to set up online licensing applications and hire staff. In October, a spokesman said it would be “several more months” before OMMA could know all of the costs associated with the program. A pending lawsuit targets state agencies for collecting both a state sales tax, 4.5 percent, and a gross receipts tax, 7 percent, from marijuana sales.