How Gov. Fallin Rushed Into A Lawsuit By SQ788 Voters

 On Wednesday, Gov. Mary Fallin enacted 3 emergency measures which the Oklahoma Board of Health have forwarded to her office.  Her lack of prudence created a liability upon the state which would easily have been avoided.

  The entire state could have avoided a forthcoming state lawsuit against the enacted measures had Fallin used just a little discretion in her rush to enact the 3 separate actions of the Oklahoma Board of Health.
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  The first measure was an approval of the final draft of Emergency Rules published on July 8th by the legal staff of the Board of Health, under the direction of Interim Director Tom Bates and Legal Council Julie Ezell, with the exception of sections 310:681-1-4(definitions), and 310:681-2-11(Restrictions on Smokable Medical Marijuana and Medical Marijuana Products).
The second measure was an 'audible' motion by Dr. Skillings (who just joined the board at that hour). He read a list of approved forms of products. ​

Chip Paul & Megan Dedmon represent two of the Health advocacy organizations who are plaintiffs in a suit against the State Board of Health.

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   It did not include any  flower, dry leaf or plant form, or anything smokable.  It passed on a 5-4 vote, despite the warnings of the department's legal council that the board was exceeding their constitutional role and limits.

  The third board measure was another 'audible' motion to rewrite the definitions of Medical Marijuana Authority Rules. It particularly changed the definitions of a 'Dispensary Manager' so that only a licensed pharmacist in good standing with the Oklahoma State Board of Pharmacy. could operate the business of a dispensary. Again, the legal council advised the board against this attempt, saying that "this requires a statutory change in order to enact."  It would most likely result in a lawsuit against the agency & board members. Dr. Terry Gerard retorted; "I believe that many of the actions we're taking today are going to be challenged".

  Fallin could have approved this first rule submission without the other two unexpected rewrites of Definitions (1-4) & Restrictions on Smokables(2-11), since they were passed as separate parliamentary actions of the board meeting.
  Had Fallin sent back the second & third items of business on emergency rules and instructed the board & agency staff to conduct the standard public comment process and research that all other rules have been refined by, then a more prudent and wiser product of the board would result. the board could have done so at their August 10th Board Meeting, with plenty of time to enact before the August 25th implementation date.
  It ends up that Dr. Gerard (a Durant Emergency Medicine physician) was quite wrong in his speculation. The public broadly supports everything the Health Dept. Staff produced. The Legislature, the Cannabis Trade Associations, the civil rights groups on the left & right, all the candidates for governor, legal advocacy groups, and the select group of physicians most experienced in cannabis medicines.
  It seems that only socialized medicine bureaucrats, big pharma, and hospital corporations are praising the 2 untimely amendments that the board approved. Most of the Board of Health members are also members of physicians associations and/or hospital corporations.
  The justifications quoted by the Board President (Dr. Starkey) is that the board is mandated to protect the health of Oklahoma. Starkey argued that that mandate somehow overrides the statutory law that the voters enacted. They seems to take that as justification to trump any other constitutional body. Perhaps the 'god-complex' of doctors is worse than we thought.

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Cannabis Vapor Ban

  Here's the original final draft language of 310:681-2-11, presented to the Board of health, and below it is the language that the board amended, in separate board actions.

(c) Medical marijuana products may only be dispensed to a patient or caregiver in the following forms:

1. (1) pill; 
2. (2) oil;
3. (3) topical forms, including gels, creams, or ointments;
4. (4) a form medically appropriate for administration by vaporization or nebulization, excluding flower, dry leaf or plant form;
5. (5) tincture; or
6. (6) liquid.

(d) Medical marijuana product may not be dispensed to a patient or a caregiver in flower, dry leaf or plant form.

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(a) All smokable, vaporized, vapable and e-cigarette medical marijuana and medical marijuana products ingested, smoked, or consumed by a patient license holder is subject to the same restrictions for tobacco under section 1-1521 et. seq. of Title 63 of Oklahoma statutes, commonly referred to as the “Smoking in Public Places and Indoor Workplaces Act.”

(b) All smokable, vaporized, vapable and e-cigarette medical marijuana and medical marijuana products consumed or smoked by a patient medical marijuana license holder shall not be smoked nor consumed in the presence of a minor under the age of eighteen (18).

Pharmacist Staffing Mandate

 Here's the original final draft language of 310:681-1-4 - Dispensary Manager, presented to the Board of health, and below it is the language that the board amended, in separate board actions.

“Dispensary Manager” means a person who is knowledgeable in the specialized functions of medical marijuana product preparation and dispensing, including the safety standards and quality assurance. This knowledge may be obtained through training programs and/or previous experience in a medical marijuana dispensary. A dispensary manager may also be a licensed healthcare provider (e.g. pharmacist, etc.).

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“Dispensary Manager” means a person who a current licensed pharmacist in good standing with the Oklahoma Board of Pharmacy and is knowledgeable in the specialized functions of medical marijuana product preparation and dispensing, including the safety standards and quality assurance. This knowledge may be obtained through training programs and/or previous experience in a medical marijuana dispensary.