When the Oklahoma Board of Health passed a scaled-back version of the emergency rules for administering the new medical marijuana law, most proponents were celebrating the improvement over the earlier version when was enacted on July 11th.
But Attorney Ron Durbin, council for Green the Vote, did his due diligence to scour the document for any new proposals. He is now strongly opposed to what many are calling a "poison pill" clause. It mandates that the regulated cannabis must be accurately labeled and meet the terms of the statutes prohibiting the use of the words "Cannabis" or "Marijuana".
It's a deliberate 'catch 22' . If you don't accurately label, then you're dishonest, fraudulent, and get shut down. But if you do accurately label, then you just admitted that you "Adulterated a drug" and face criminal prosecution.
Here is the last-minute Food Safety Rule That The Board of Health Inserted, To contradict the legality of medical marijuana.
These rules do not relieve commercial licensees of any obligations under Oklahoma law, statutes, and rules, including 63 O.S. § 1-1101 et seq., 63 O.S. § 1-1401 et seq., the Oklahoma Administrative Code (“OAC”) 310:257, and OAC 310:240, to the extent they are applicable and do not conflict with 63 O.S. § 420 et seq. (the statutory language of SQ788)
So, let's look at some of those discrete references and see what harm they could present...
(a) The term "food" means (1) articles used for food or drink for man, (2) chewing gum, and (3) articles used for components of any such article.
(b) The term "label" means a display of written, printed or graphic matter upon the immediate container of any article; and a requirement made by or under authority of this article that any word, statement, or other information appearing on the label shall not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if there be any, of the retail package of such article, or is easily legible through the outside container or wrapper.
(d) The term "labeling" means all labels and other written, printed or graphic matter (1) upon an article or any of its containers or wrappers, or (2) accompanying such article.
Laws 1963, c. 325, art. 11, § 1101.
The following acts and the causing thereof within the State of Oklahoma are hereby prohibited:
(l) the sale, offer to sell, dispense or release into commerce of any food or confection under a name, label or brand when the name, label or brand either precisely or by slang term or popular usage, is the name, label or brand of a controlled dangerous drug or a controlled dangerous substance by law.
Laws 1963, c. 325, art. 11, § 1102; Laws 1973, c. 114, § 1.
(a) The manufacture, sale, or delivery, holding or offering for sale of any drug, device, or cosmetic that is adulterated or misbranded.
A drug or device shall be deemed to be adulterated:
Laws 1963, c. 325, art. 14, § 1408, operative July 1, 1963; Laws 1992, c. 52, § 3, eff. Sept. 1, 1992.
The reference to "§63-240" is the new medical marijuana language that the voters passed, in SQ788
Cite as: 63 O.S. § 420A (OSCN 2018), Medical Marijuana
A. A person in possession of a state issued medical marijuana license shall be able to:
1. Consume marijuana legally;
2. Legally possess up to three (3) ounces of marijuana on their person;
3. Legally possess six (6) mature marijuana plants;
4. Legally possess six (6) seedling plants;
5. Legally possess one (1) ounce of concentrated marijuana;
6. Legally possess seventy-two (72) ounces of edible marijuana; and
7. Legally possess up to eight (8) ounces of marijuana in their residence.
B. Possession of up to one and one-half (1.5) ounces of marijuana by persons who can state a medical condition, but not in possession of a state issued medical marijuana license, shall constitute a misdemeanor offense with a fine not to exceed Four Hundred Dollars ($400.00).
C. A regulatory office shall be established under the Oklahoma State Department of Health which will receive applications for medical license recipients, dispensaries, growers, and packagers within sixty (60) days of the passage of this initiative.
D. The Oklahoma State Department of Health shall within thirty (30) days of passage of this initiative, make available, on their website, in an easy to find location, an application for a medical marijuana license. The license will be good for two (2) years, and the application fee will be One Hundred Dollars ($100.00), or Twenty Dollars ($20.00) for individuals on Medicaid, Medicare, or SoonerCare. The methods of payment will be provided on the website.
E. A temporary license application will also be available on the Oklahoma Department of Health website. A temporary medical marijuana license will be granted to any medical marijuana license holder from other states, provided that the state has a state regulated medical marijuana program, and the applicant can prove they are a member of such. Temporary licenses will be issued for thirty (30) days. The cost for a temporary license shall be One Hundred Dollars ($100.00) Renewal will be granted with resubmission of a new application. No additional criteria will be required.
F. Medical marijuana license applicants will submit their application to the Oklahoma State Department of Health for approval and that the applicant must be an Oklahoma state resident and shall prove residency by a valid driver's license, utility bills, or other accepted methods.
G. The Oklahoma State Department of Health shall review the medical marijuana application, approve/reject the application, and mail the applicant's approval or rejection letter (stating reasons for rejection) to the applicant within fourteen (14) days of receipt of the application. Approved applicants will be issued a medical marijuana license which will act as proof of their approved status. Applications may only be rejected based on applicant not meeting stated criteria or improper completion of the application.
H. The Oklahoma State Department of Health will only keep the following records for each approved medical license:
1. a digital photograph of the license holder;
2. the expiration date of the license;
3. the county where the card was issued; and
4. a unique 24 character identification number assigned to the license.
I. The Department of Health will make available, both on its website, and through a telephone verification system, an easy method to validate a medical license holders authenticity by the unique 24 character identifier.
J. The State Department of Health will ensure that all application records and information are sealed to protect the privacy of medical license applicants.
K. A caregiver license will be made available for qualified caregivers of a medical marijuana license holder who is homebound. The caregiver license will give the caregiver the same rights as the medical license holder. Applicants for a caregiver license will submit proof of the medical marijuana license holder's license status and homebound status, that they are the designee of the medical marijuana license holder, must submit proof that the caregiver is age eighteen (18) or older, and must submit proof the caregiver is an Oklahoma resident. This will be the only criteria for a caregiver license.
L. All applicants must be eighteen (18) years or older. A special exception will be granted to an applicant under the age of eighteen (18), however these applications must be signed by two (2) physicians and the applicant's parent or legal guardian.
M. All applications for a medical license must be signed by an Oklahoma Board certified physician. There are no qualifying conditions. A medical marijuana license must be recommended according to the accepted standards a reasonable and prudent physician would follow when recommending or approving any medication. No physician may be unduly stigmatized or harassed for signing a medical marijuana license application.
N. Counties and cities may enact medical marijuana guidelines allowing medical marijuana license holders or caregivers to exceed the state limits set forth in subsection A of this section.