Medical Marijuana Approved by Voters
By: Constitution Staff
There was only one state question on the June 26 primary election ballot, and it was approved by voters. There were 892,758 votes cast on State Question 788, with 56.86 percent voting in support of the proposal. This was the second effort by Oklahomans for Health to place a medical marijuana question before voters. The same group made an attempt two years earlier, but failed to gather enough signatures. In this second effort, the group did not seek to change the state Constitution, but instead proposed a change to statutes. A statutory change can be repealed or changed by the Legislature, while amending the state Constitution would make it harder for future legislatures to repeal the changes.
For an initiative petition not requiring a constitutional change, petitioners had to gather only 65,987 signatures rather than the 123,725 required for a constitution change. In this second attempt, supporters gathered enough signatures in 2016 and hoped to get the proposal on the November ballot, but it was delayed that year because of the timing of elections and then Attorney General Scott Pruitt’s attempted rewording of the ballot title. After a court challenge, the original language of the petitioners was restored.
The measure permits doctors to recommend a patient for a state-issued medical marijuana license. The Oklahoma State Department of Health (OSDH) will issue medical marijuana licenses if the applicant is eighteen years or older and an Oklahoma resident. A special exception will be granted to an applicant under the age of eighteen, however these applications must be signed by two physicians and a parent or legal guardian. OSDH will also issue seller, grower, packaging, transportation, research and caregiver licenses. A license holder would be allowed to legally possess up to 3 ounces of the drug, six mature plants and six seedlings. These limits can be increased by individual counties or cities. A 7 percent tax will be applied to retail sales, with the money going first to finance regulatory expenses. Then, 75 percent of excess funds would go to common education and 25 percent to drug and alcohol rehabilitation. The measure also limits the punishment for unlicensed possession of permitted amounts of marijuana for individuals who can state a medical condition to a fine not to exceed $400.
There are currently29 other states that have medical marijuana programs. However, most of those states limit the use to a specific list of qualifying medical conditions for which a doctor could prescribe medical marijuana. In contrast, this measure leaves it to the doctor’s discretion. The measure also allows a higher amount of marijuana to be possessed by an individual than most other states.
Prior to the election, Gov. Mary Fallin said she would call a Special Session of the Legislature if the measure passed to set up the legal framework to implement the measure. But, following the election, she issued the following statement:
“After conferring with House and Senate leaders, we believe a special legislative session is not necessary to implement provisions of State Question 788. The Oklahoma State Department of Health has developed emergency rules that will ensure the health and safety of Oklahomans as well as being fair and balanced for the marijuana industry. The Health Department has been working with other agencies the past several months to develop a medical and proper regulatory framework to make sure marijuana use is truly for valid medical reasons. The voters have spoken, and it’s important that our state has a responsible system up and running to meet the deadlines outlined in State Question 788. If circumstances develop that adjustments to the Health Department rules are necessary, those can be addressed when lawmakers return in regular session early next year.”
The OSDH created the Oklahoma Medical Marijuana Authority to handle implementation. The OSDH board met on July 10 and approved emergency rules regarding, licensing for patients, growers, processors, transporters and dispensaries, and Gov. Fallin signed the rules the next day. The State Question placed an accelerated implementation period upon the OSDH which required the start the application process by July 26, which was one month after passage of the measure.
Supporters of the measure were unhappy with some of the rules and challenged the validity of two of the rules in particular. In response, OSDH Interim Director Tom Bates requested an opinion from state Attorney General Mike Hunter. On July 18, Hunter advised OSDH to amend the rules it passed. “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.”
The Attorney General advised that 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, and do not include prohibiting the sale of smokable, vapable, edible or other forms of marijuana. He also took issue with the board’s action to require dispensaries to hire a pharmacist, writing, “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.” The board subsequently set a meeting to consider revising the rules.
Oklahoma Senate President Pro Tempore-designate Greg Treat and House Speaker Charles McCall announced the formation of a bipartisan, bicameral working group on medical marijuana implementation. The working group will meet with various stakeholders and will make recommendations on a permanent regulatory framework for the implementation of State Question 788. Unless a Special Session is called, the recommendations will not be considered until the Legislature is back in session in February.
There could be additional marijuana initiatives placed before Oklahoma voters. Green the Vote filed notice on April 3 with the Oklahoma Secretary of State and is collecting signatures to place two state questions – 796 and 797 – on the ballot.
The first, State Question 796, would amend the state Constitution to classify marijuana as an “herbal drug” which would be regulated by the proposed Oklahoma Cannabis Commission. If approved by voters, it would allow for use by patients meeting qualifying conditions such as cancer, glaucoma, HIV/AIDS, migraines, multiple sclerosis, Parkinson’s disease and post-traumatic stress disorder. Those who have conditions not on the list will need recommendations from two doctors rather than one. The second initiative, State Question 797, states that adults 21 years or older could consume or possess up to two ounces of marijuana for personal use.
Since each of the petitions relate to a proposed constitutional change, each requires the collection of a minimum of 123,725 valid signatures by August 8. While the group hopes to get the measures on the November ballot, there are many obstacles that prevent that from transpiring. The promoters of State Question 788 collected signatures in 2016, and the initiative did not reach the ballot until this year.
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