(Editor’s Note: Arkansas’ neighbors in Oklahoma vote today whether to approve one of the least-restrictive state laws allowing medical marijuana. State Question 788 would make it legal to grow, sell and use marijuana for medicinal purposes. As The Associated Press reports, the proposal outlines no qualifying conditions, which would allow physicians to prescribe its use for a range of ailments. Here, Erika Gee examines the law and finds points of comparison with Arkansas’ medical marijuana law.)
Today, Oklahoma might become the 31st state to broadly legalize marijuana for medical use. Although Oklahoma allows the use of non-psychoactive cannabidiol (CBD) for certain limited purposes, State Question 788 would authorize a comprehensive program beginning 30 days after the vote.
Here’s a look at the provisions of the proposed law and some likely potholes in the road to implementation.
Oklahoma would be breaking new ground with this law, as it does not delineate any “qualifying conditions,” which have become the common regulatory shorthand for determining whether a patient would benefit from medical marijuana. Rather, in order to qualify for a patient’s license, an Oklahoma board-certified physician must recommend the use of medical marijuana, using “the accepted standards a reasonable and prudent physician would follow when recommending or approving any medication” as a guide.
This provision has been controversial, with many in the Oklahoma medical and business communities opposing it as too broad and in need of safeguards to prevent recreational use. On the other hand, proponents argue that leaving the recommendation entirely in the professional judgment of the physician is actually a more stringent standard than a set list of conditions.
In most ways, the Oklahoma framework is similar to other states with medical marijuana programs. It authorizes possession and use of marijuana by persons holding a state-issued medical marijuana license. It sets limits based on the form of marijuana — 11 ounces of marijuana split between the patient’s person and residence, one ounce of concentrated marijuana and 72 ounces of edible marijuana. The law also allows patients to “grow your own,” with up to six mature plants and six seedlings, and reduces criminal penalties for possession by non-license holders in some circumstances. Patients under 18 must have written recommendations from two physicians in order to qualify for a license.
The Business of Marijuana
Unlike Arkansas’ medical marijuana law, State Question 788 would set no limits on the number of cultivation facility, dispensary and processor licenses to be issued or a lengthy merit-based approval process. Each of these types of businesses will be able to submit an online application 30 days after legalization, with the requirement that the Oklahoma Department of Health “must approve” all applications that meet basic criteria within 14 days. It provides that no more than 25 percent of the ownership interests in an applying entity can be held by out of state residents. It is also noteworthy that these licenses will be substantially cheaper than those in Arkansas, with an application fee of only $2,500.
Other key points of State Question 788 address protections against discrimination against medical marijuana patients by schools, landlords and employers; require all medical marijuana businesses to be located at least 1,000 feet from a school; and prohibit city and county governments from enacting zoning laws to prevent the opening of a licensed medical marijuana business. The law would also establish a 7 percent tax on all retail sales, with the proceeds dedicated to financing the regulatory office.
Implementation
If State Question 788 passes, as it appears likely to do, the residents of Oklahoma will awake on Wednesday with a whole new set of questions before them, as the state begins the process to implement the new law.
The provisions of State Question 788 itself are remarkably straightforward. Perhaps ironically, the simplicity of the measure makes it more likely to be the subject of legislative attention, if only to establish a comprehensive regulatory framework. From the public comments of legislators and other officials, it appears likely that a third special session may be convened if SQ 788 passes. Based upon the statements of local opponents and the recent experience in Arkansas, likely topics for the legislature to tackle may be:
- Creating a list of qualifying conditions to replace the physician-recommended standard;
- Creating a new agency or commission to oversee the industry or moving the authority away from the Oklahoma Department of Health to an existing agency;
- Replacing the short timeline for implementation with a longer set of deadlines;
- Enacting limitations on smokeable and edible forms of medical marijuana;
- Restricting pediatric access to medical marijuana;
- Enacting employer-requested language regarding a drug-free workplace and other employment-related protections;
- Limiting the number of licenses to be issued;
- Changing the licensure process to a merit-based system; and
- Authorizing local government to restrict or ban medical marijuana businesses.
Because State Question 788 is a statutory and not a constitutional provision (as Arkansas’ ballot question was), it will take only a simple majority of the legislative body to modify, replace or remove provisions of the new law. For this reason, if the law passes, participants on both sides of the issue can expect continued discussion and debate as Oklahoma works to create a safe and healthy medical marijuana system.
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Erika Gee, a partner at the Wright Lindsey and Jennings law firm in Little Rock, represents clients in government relations, regulatory and compliance matters. She has also been actively representing clients in the emerging Arkansas medical marijuana industry. Email her at EGee@WLJ.com. |
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