Sale of smokable marijuana banned by State Board of Health

Posted on: 7/11/18

On Tuesday, July 10, the Oklahoma State Board of Health passed the emergency rules implementing certain provisions of SQ 788, the medical marijuana initiative which passed at the June 26 primary election.

The rules provide guidance for the production and use of medical marijuana for physicians, patients and the distribution of the product. The rules will go to the governor for action. Licenses will be available beginning July 26 and the Oklahoma State Department of Health (OSDH) will accept applications on Aug. 25.

Two amendments passed that were advocated by the medical community, including the Oklahoma Hospital Association, banning the sale of smokable marijuana and requiring a licensed pharmacist be on site at marijuana dispensaries. The amendment to ban smoking marijuana was offered by newly appointed Board of Health member Chuck Skillings, CEO of SSM Health St. Anthony Shawnee Hospital and long-time leader in the fight to improve the health of Oklahomans. Skillings pointed out that the sale of smokable marijuana would be a step backward for public health. “I don’t think we’re protecting the public that doesn’t smoke,” he said. “I think we’re imposing a hazard.” Skillings was referring to allowing the use of smokable marijuana. The amendment banning smokables was adopted on a 5-4 vote.

OHA supports the legal authority of the Board of Health to regulate actions pertaining to SQ 788 on medical marijuana including banning the sale of smokable forms. On June 26, Oklahomans gave the authority to regulate SQ 788 to the agency that already regulated public health and smoking cessation, OSDH. A state agency may adopt rules consistent with its enabling legislation, so long as such rules are not contrary to the plain language of the statute. The text of SQ 788 does not direct the OSDH to license smokable forms of marijuana and in fact is silent on smokables. OSDH may prohibit by rule the consumption of medical marijuana by smoking. Our legal expert concluded that it would be under the authority of the OSDH to define the legal consumption of medical marijuana to not include smoking. The OSDH rules adopted today states the medical marijuana products may be dispensed to a patient or caregiver in several forms but not dispensed in flower, dry leaf or plant form. The adoption of SQ 788 did not expressly authorize the smoking of medical marijuana.

Further, more than 40 times in the text of SQ 788, the reference is made to medical marijuana. SQ 788 calls for the recommendation of a medical marijuana license by a physician based on “sound legal judgment.” There is no scenario where a physician in their sound medical judgement will recommend a patient to smoke. In fact, health care is focused on urging patients to cease smoking and not to take it up in a new format like marijuana. For a complete copy of the rules, click here.

On Monday, the OHA joined leaders in the health and medical community to propose three amendments to the medical marijuana rules. All but one amendment was adopted by the Board of Health. Representatives from the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) Board, Oklahoma State Medical Association (OSMA), Oklahoma Osteopathic Association (OOA), Oklahoma State Board of Pharmacy, the Oklahoma Academy of Family Physicians and the OSU Wellness and Recovery Clinic outlined areas of public health concern and additional recommendations for the program. Measures proposed by the health care community include:

• Eliminating smokable cannabis, as is the case in other states. Instead, dispensaries should only offer medical marijuana products that are more easily measured for doses, such as certain edibles, oils and sublingual delivery methods. (adopted)
• Requiring pharmacists to be in the dispensaries and part of the approval process. (adopted)
• Limiting the initial number of dispensaries and locations to 50, as requested by the cannabis industry. (not adopted)

“In this room are the medical professionals and organizations that will be responsible for implementing medical marijuana and dealing with its consequences. Their recommendations must be heard and must be implemented,” said ODMHSAS Board Chair Brian Bush. “The protection of public health is to be at the forefront of everything being done to implement these rules. The recommendations outlined here are crucial to that end. To ignore the inclusion of these needs sets our state up for terrible consequences. While I understand that the process is difficult, this must be done right.”

The coalition was questioned by the press about their opposition to SQ 788. OHA President Craig W. Jones pointed out that our groups were opposed to SQ 788 because it was ambiguous in many areas. Jones added, “It bothers me that there is a sense that Oklahoma’s medical community is against medical marijuana. We’re not. We just want to get it right and smoking is a step backward.” (Lynne White)