In this episode of Capitol Insider, KGOU’s Dick Pryor and eCapitol’s Shawn Ashley talk through the process and politics of the controversial health department rules for Oklahoma’s medical marijuana program, including a ban on products intended for smoking. These rules can be amended, but as Ashley explains, Republicans lack the political will to return to the capitol before the next legislative session. Democrats will likely turn it into a campaign issue.
Dick Pryor: Shawn, the Board of Health submitted and Governor Fallin approved new rules regulating medicinal marijuana. Why were these new rules necessary? And what are they intended to do?
Shawn Ashley: Well, State Question 788 provided a broad outline for the medical marijuana program in Oklahoma, and what the rules do is try to take that and implement the specific steps, processes, and policies necessary for the program to work. They cover licensing for growers. They cover licensing for processors, and licensing for dispensaries, and they go even further. However, they also include requirements related to the testing of products all along the product chain from the time it has grown until the time it is consumed, and ultimately the amendments to the rules even deal with who will sell you the medical marijuana and how you will consume it because they banned smokable products.
Pryor: These new rules were implemented very quickly which gives us an opportunity to step back and look at the regulatory rulemaking process.
Ashley: That's right. These were what are called emergency rules, which are implemented by state agencies in, when there's a specific need to address a particular issue. We see agencies throughout the course of the year implement emergency rules that will only be in effect for a limited amount of time. The other rules that agencies consider are what are called permanent rules.
Pryor: Can these rules be amended?
Ashley: Yes, these rules... the emergency rules could be amended first by the Board of Health itself, or they could be changed somewhat when they look at implementing the permanent rules that will come into play for the long-term effect of the program.
Pryor: So there's concern that the rules may conflict with the intent of state question 788, the new law.
Ashley: There are some who say it, in fact, does... that when people voted for it they were voting to be, for users of the products to be allowed to smoke that product, if that's how they chose to consume it. They also believe on the industry's side that it imposes an undue burden on dispensaries to have to hire a pharmacist to run them. In fact we have heard from those individuals who are involved in gathering the signatures for state question 788 that really they feel the board went a little too far. Also the industry the cannabis industry has reacted negatively to the rules particularly the smokable and pharmacists requirements saying that they will be harmful to the industry as it begins to develop in the state.
Pryor: Now that the rules have been approved will legislative leaders come back for a special session or will they avoid doing that?
Ashley: It seems like it is not likely that lawmakers will come back. Governor Mary Fallin who initially said she would call for a special session backed off that, and said she would not in part because legislative leaders don't appear willing to return to the Capitol before next year's legislative session.
Pryor: What's the political calculus behind this decision making?
Ashley: Well I think the political calculus plays a big role and that is they are afraid of what might happen if they mess things up.
Pryor: And "they" is legislators...
Ashley: They is legislators... They're concerned in an election year of doing something that would outrage the public. And we saw on Tuesday when the Board of Health took up these rules that the opportunity to outrage the public is there. The two amendments related to the prohibition on smokeable products and requiring pharmacists have very well outraged the public.
Pryor: This is far from over.
Ashley: This is far from over. We have seen that House Speaker Charles McCall and Senate President Pro Tem designate Greg Treat have formed a working group that will represent both chambers and represent both parties to look at some way of addressing this when the legislature comes back in February. However, House Democrats are not exactly pleased with that proposal. They say lawmakers do need to come back into a special session. And what we will see is that will most likely be an issue on the campaign trail that Democratic candidates will point at Republicans and say they had a chance to address this before it got messed up and now that it has been messed up legislative leaders who are part of the Republican majority are unwilling to return to the capitol to try and fix that until sometime later next year, after the election.
Pryor: Fascinating. Thanks Shawn.
Ashley: You're very welcome.
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