UPDATE: Version '3.1' was passed by the OBH *.
The Oklahoma Department of Health is trying for a 2nd time to get a sensible and workable set of temporary rules to administrate the new law enabling doctors to treat patients with Cannabis medicines.
Earlier this month a policy team built a framework with multiple egregious errors and unconstitutional overreaches. then the Board of Health added even harsher rules in their last-minute unannounced and rogue amendments.
When the authors of 788 and others filed a lawsuit, the Attorney General stepped up and reviewed just a few rules and found not just two, but eight named violations that the Board of Health, Department of Health, and Oklahoma Governor wrongfully passed & enacted.
Today I, as a citizen, wrote to the ODH, asking them to look at some remaining issues.
Dear Health Department;
I have been waiting to hear of any public comment period on rules your team has drafted and published on July 27th.
Seven glaring problems exist in these rules and two are in the Definitions (1-4)
1. Residents? You seem to require that an individual actually owes & pays state income tax in order to meet the definition of a "Resident". that will be a very problematic position for many disabled, retired, and minor patients. *Fixed !
2. CBD Over the Counter? You have no threshold limit of THC listed to differentiate CBD (which is currently for sale over-the-counter) from the THC enhanced CBD. There needs to be a distinction, otherwise all CBD sold since July 26th has been illegal for anyone without a proper license. *May be fixed !
3. Drugstore Rules? You'll also need to treat Medical Dispensaries with rules of commerce similar to the more dangerous drug stores (which sell Methamphetamines & Opiates). To not be consistent with medical opiate or medical meth rules will be arguably "arbitrary & capricious".*Mostly Fixed !
4. Initial Seeds? An authorized source or amnesty policy will have to be set in order to allow for initial stocks to enter the state and made available to licensed entities. Perhaps a seed repository will be commissioned for a short period of time?
5. House Plant Rules? Patients will need to have marijuana house plants made feasible legal. Currently the rules state that a patient cannot ever have anyone in the home if a plant is present. *Fixed !
*6. Treatment without a license? If a person is cited with possession and has no license, they may later show the court medical evidence that they sought & later received authorization for a license, but were simply self-medicating at the time of the infraction. Without the medical evidence to the court it's still up to $1000./1 year in jail. but with a medical case it may be a $400 citation. This will lead sick people to get real physician care and oversight for properly treating their condition.
*7. Cannabis Physicians Cannot Be Patients? Any physician will occasionally need medical treatment. Why can a physician be an Opiate, Ritalin, or Prozac patient, but they cannot be a Cannabis patient? What probable cause exists? How does the statute empower this rulemaking extreme and arbitrary outburst?* Not Fixed
I hope your team can address these 5 matters.
David Van Risseghem
Let's look at these 5 matters in greater detail...
- 310:681-1-4. Why would any rational person (that excludes lawyer-speak) say that you're not a resident unless or until you pay a specified tax? Several states have done away with assessing any income tax at all! Are there no real residents of Texas or Florida? The retired citizens, the disabled, the minor dependents, and the lower income workers are all excluded from access to cannabis medicines by this rule being imposed by the people who are supposed to promote the health of Oklahomans!
Oklahoma's Public Safety rules are strikingly different, when determining if a person can get an Open Carry firearms permit. The Self Defense Act (SDA) says;
" In order to be eligible for an SDA license you must be a resident of Oklahoma.
For purposes of the Oklahoma Self-Defense Act, the term resident is anyone who either possesses a valid Oklahoma driver license or state photo identification card, and physically maintains a residence in this state, or has permanent military orders within this state and possesses a valid driver license from another state where residency is claimed."
So you need a valid ID and valid ongoing domicile in the state.*Fixed !
- 310:681-1-4. Six years ago, all CBD oil was illegal and folks were subject to up to a 5 year prison sentence for simple possession. Then Rep. Jon Echols and others got "Katie's Law" passed and kids with epilepsy started getting real medicine to cure their seizures. That law stipulated that any more than a trace amount of THC in the CBD oil was banned. Then this 4 year old proposal finally got put on a ballot and it passed by 14%.
But since this chronologically supersedes the old CBD law and it remains very fuzzy to most citizens about CBD oil, since it meets the definition of Medical Marijuana. Do CBD customers now need a patient license for something they were buying off the shelf for 4 years. The voters do not want to go backwards on this! *Uncertain
- 310:681-5-17 & 18 Currently we have college-age young adults managing drugstores. Those drug stores have terribly dangerous and addictive drugs. Yet those managers have no health dept bans on advertising, signage, employment security investigations, promotional events, open access for all ages to enter the retail stores (except the drug storage area) If Oklahoma ever legalizes casual marijuana, then those dispensaries should have similar rules to those which liquor stores must follow. But Medical dispensaries should follow drugstore rules.
Don't treat this as a liquor store when it's already harder to get medical access to the physician-directed cannabis medicines than a to get opiates from a drugstore, and the dangers are not even close to commensurate. *Partially Fixed !
- There is no means stated whereby a law-abiding citizen can feel safe and compliant in attaining an initial stock (seeds or seedlings) in September. The rules could either establish an agency seed repository or contract the role to a licensed seed dispensary. This is needed during the initial rollout but could be phased out or transitioned to a conventional dispensary within a couple years.*Not Fixed !
- 310:681-2-13.b Why is it that a homeowner medical marijuana patient cannot escort a plumbing contractor into the home if house plants are present. But the commercial grower can escort outside contractors to do work in the nursery. This is a great inconsistency where the small time patient is treated as a greater threat than a grower. Any plants inside a locked residence of a medical marijuana patient must be regarded as suitably safe. A patient may properly need a horticultural specialist to assist in the initial growing process and some patient advocates may wish to assist these needy patients. *Fixed !
*6. SQ788.1.B. Unlawful possession Fine ($400). The broader law states up to 1 year in jail and/or up to $1000 fine for possession is also on the books. A properly licensed patient should face no prosecution once the present clear evidence that they were properly licensed at the time of citation. But a person who presents valid medical basis and recommendation, but wasn't yet licensed when cited, should only face a $400 citation. The difference is proof of a medical affidavit.
*7. 310:681-1-9.1.b.10.B. Recommending physician standards says that an experienced & licensed patient has to quit caring for his cannabis patients once he gets a condition which indicates a need for cannabis medicine. this is a vast departure and harms the stable and experienced physician/patient relationship.