by Sarah Lee Gossett Parrish, Cannabis Lawyer
My first article, OKLAHOMA’S MEDICAL MARIJUANA SYSTEM—THE BIG PICTURE PART I, discussed the inception of Oklahoma’s medical program up through the first major piece of legislation to further regulate it, the Oklahoma Medical Marijuana and Patient Protection Act, nicknamed the Unity Bill (“UNITY”), which Governor Stitt signed into law on March 14, 2019, and became effective on August 29, 2019. UNITY modified the landscape rather significantly.
After UNITY, OMMA rallied and produced two new sets of rules—the amended emergency rules and the not-permanent but permanent-for-now-until-summer-2020 rules, known as the “current rules”. Additional requirements for renewal applications were added, which included not only the above-referenced certificates of compliance but also sales tax permits, documentary evidence of entity ownership, and other applicant information previously not required. OMMA’s current rules became effective the middle of September, 2019, and advise at the outset:
“*New legislation passed in 2019 established the need for emergency rules. If you need additional clarification on interpreting these rules please seek your own legal guidance.”
The current rules are significantly longer than the emergency rules, as amended. After a comprehensive definitions section, the rules discuss criminal history screening, registration with the Oklahoma Bureau of Narcotics and Dangerous Drugs, proof of residency and identity, photographs required of applicants, and recommending physicians’ required registration and standards. Food Safety Standards Board meetings and particulars, inspections, audits, testing requirements, inventory manifests, fines and penalties, and a plethora of other matters are included.
Significantly, the penalties now include precise fines and specific disciplinary actions, such as revocation of a license upon a showing “that the violation (of the rules or other applicable law) was willful or grossly negligent.” This evidences OMMA’s strategic move to a well-recognized administrative law structure, including provisions for administrative hearings, application of due process with notice and the opportunity to be heard, the likely appointment of administrative law judges or hearing examiners, and application of the Oklahoma Administrative Procedures Act—all matters predicted to be implemented during the continued build-out of Oklahoma’s medical marijuana regulatory framework. In fact, current pending legislation proposes separation of OMMA from the Department of Health and creation of a stand-alone agency. This is a necessary step to ensure the continued growth and success of Oklahoma’s medical marijuana program.
As Oklahoma’s program matured throughout 2019, more specific testing and inspection requirements were implemented. These continue to evolve today. Advertising and packaging requirements followed, and the Oklahoma Bureau of Narcotics and Dangerous Drugs (“OBNDD”) entered the picture with its required registrations for OMMA licensees—Manufacturer Registration for Processors and Growers at $500 per registration, and Distributor Registration for dispensaries at $300 each. These license registrations now expire on October 31 of each calendar year unless renewed. Importantly, OMMA licensees are now prohibited from touching the plant or opening for business until the OBNDD license registration is obtained—a distinct change from the old days of opening, then filing for OBNDD license registration along the way.
OBNDD also enacted its own set of rules to govern OMMA commercial business licensees, and the breadth of these rules rivaled OMMA’s original Emergency Rules, including security requirements, employee criminal history prohibitions, labeling requirements, and the transfer and disposal of medical marijuana. Today, OBNDD has revised its rules so that they are consistent with OMMA’s current rules when the two overlap, and past compliance issues that arose when OBNDD and OMMA rules were in conflict have now been resolved.
On the social front, Oklahomans in the cannabis industry have formed strong industry associations like Oklahoma Women Cann and the Oklahoma Cannabis Industry Association, an affiliate of the National Cannabis Industry Association, which now hosts an annual industry social in Oklahoma City. Oklahoma City has hosted CannaCon I and II, along with other conferences in Tulsa, OKC, Lawton, and around the state, and High Times has come to town for the first (and infamous) Oklahoma High Times Cannabis Cup. Since that Cup, others have followed, like the Cowboy Cup in Stillwater. The learning curve is great in Oklahoma.
The Oklahoma Bar Association even sponsored a day of cannabis continuing legal education to kick-off its annual Bar convention last November, “Cannabis POTpourri”. It was sold out, and heavy hitters in the industry flew in to speak from across the country. The International Cannabis Bar Association also sent representatives and picked up some new Oklahoma members.
It has been said that Oklahoma basically has an adult use system, given that there are no preexisting condition requirements and that doctors who will write potential patients a medical marijuana recommendation are plentiful. Perhaps this observation is correct. However, there are limits on how much medical marijuana a patient can possess, and there are currently no provisions for out-of-state patient licenses or delivery of medical marijuana (pending legislation may change this).
On Monday, February 3, 2020, Oklahoma’s new legislative session began, and within a matter of days, Oklahoma legislators had filed numerous bills relating to the medical marijuana program. Most of the bills that passed in committee and made it out of their chamber of origin are favorable to the industry. Whether these will survive the other chamber’s committee, a floor vote, and Governor Stitt’s approval remains to be seen.
OMMA plans to enact permanent rules in the summer of 2020, along with a set of testing rules and regulations that establish more particular and specific requirements in this arena. As of February 28, 2020, OMMA had received a total of 281,470 license applications and had approved a total of 270,175. Of these approved licenses, the breakdown is as follows: 258,308 Patient; 2,019 Caregiver; 5,948 Grower; 1,522 Processor; 2,343 Dispensary; 15 Transportation; 4 Waste Disposal; 16 Laboratory.
This year will no doubt provide highs and lows for OMMA licensees. Some will surrender licenses because competition can be fierce. Others will expand to new cities, vertically integrate, and ponder potential adult (recreational) use in the state at some future date that may be sooner than later.
OMMA and the State of Oklahoma deserve much of the credit for the successful medical marijuana program here. However, so do the citizens, the business owners, the ancillary businesses in the cannabis space, and the patients themselves. If all continue to work together, a year from now I will be writing about even more significant cannabis milestones in Oklahoma and will be proud to claim that Oklahoma continues to lead the way in the medical marijuana space. I have every reason to believe this will be the case. So, what’s the take-away right now?
It’s going to be a very busy spring here in the Wild, Wild West.
Information contained herein provides general information related to the law and does not provide legal advice. It is recommended that readers consult their personal lawyer if they want legal advice. No attorney-client or confidential relationship exists or is formed between you and Ms. Parrish as a result of this article.
In Case You Missed It
Oklahoma’s Medical Marijuana Program, The Big Picture Part I
Sarah Lee Gossett Parrish (www.sarahleegossettparrish.com) is a third-generation attorney who maintains a business litigation practice with an emphasis in Oklahoma’s cannabis industry. She is also admitted to practice in Texas. Sarah Lee represents dispensaries, growers, processors, and ancillary businesses within the cannabis space.
The National Law Journal recently named Sarah Lee one of its 2019 Cannabis Trailblazers. Sarah Lee has achieved Martindale-Hubbell’s highest AV rating for both peer and judicial review and is a member of Lawyers of Distinction for Excellence in Cannabis Law. Sarah Lee was named one of the Women Leaders in the Law by The American Lawyer Magazine in 2019 and 2020 for her leadership in Oklahoma’s medical marijuana industry. She is a member of the American Bar Association, Federal Bar Association, International Cannabis Bar Association, National Cannabis Industry Association, NORML, the Oklahoma Cannabis Industry Association, and Oklahoma Women Cann.
Sarah Lee is admitted to practice in all state and federal district courts in Oklahoma; all state courts in Texas; the United States Court of Appeals for the Tenth Circuit; and the United States Supreme Court. She received her B.A. in Letters from the University of Oklahoma, graduating with the Silver Leitzeiser Award for Outstanding Senior, Phi Beta Kappa, and Summa Cum Laude. While chairing the Oklahoma Governor’s Commission on the Status of Women, Sarah Lee was instrumental in starting the Oklahoma Women’s Hall of Fame. She recently organized and moderated Cannabis POTpourri, a sold out continuing legal education course and The Oklahoma Bar Association’s first full day of cannabis education for Oklahoma attorneys, held during the Bar’s 2019 Annual Convention.
Often interviewed in print and digital media, Sarah Lee has been quoted in Marijuana Business Daily, Los Angeles Times, The Denver Post, The New York Times, The Chicago Tribune, and online publications of ABC News, Newsmax, InStyle, Food and Wine, The Leaf, Leafbuyer.com, Cannabis Tech, CPA Practice Advisor, Cooking Light, and Health.com magazines. She has been a guest on numerous radio shows, including Cannabis A to Z with Frankie Boyer, iHeart Radio, Andy Hooser The Voice of Reason, The Mike Siegel Show, the Heidi Selexa Show, and KTOK. Her legal thriller took second place in the New York LawJournal’s 2006 Fiction Writing Contest, and she has shown her fine art photography at Art SanDiego and during Miami’s Art Basel week at Spectrum Miami. Sarah Lee is a monthly columnist for Herb-Age, an Oklahoma cannabis magazine, and has spoken at cannabis events, including CannaCon I and CannaCon II in Oklahoma City.
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