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Policymakers still have big questions to answer on medical marijuana

More than half a million Oklahomans voted in favor of State Question 788, which legalized medical marijuana. The State Question directed the Department of Health to issue rules governing the law’s implementation, and after a flurry of controversy, Gov. Fallin signed new emergency rules on July 31.

The regulation process, however, is still incomplete. While the emergency rules implement the language of SQ 788, there are several areas—including laboratory testing of cannabis products, changes to law enforcement practices, and patient licensing procedures—that remain unsettled because SQ 788 did not explicitly authorize the Health Department to create rules. These gaps will require a legislative fix, and a working group of legislators must balance concerns of law enforcement and public health officials with one of the least restrictive medical marijuana ballot measures in the nation.

Oklahoma’s medical marijuana law is relatively permissive. License holders can possess a large amount of marijuana compared to other states—including smokeable cannabis, which isn’t allowed in several other states with medical marijuana. There are also relatively few regulations on marijuana businesses, including growers, processors, and dispensaries. Those applying for a business license must be at least 25, and their board members and managers must also be Oklahoma residents. The application fee for a commercial license is relatively low at $2,500. By contrast, there are firm limits on both the capital requirements and the number of marijuana business licenses in many other states.

However, gaps in the law have created confusion for law enforcement and regulators. At a legislative working group meeting in August, law enforcement expressed concern about the law’s internal conflicts and unforeseen consequences. For example, SQ 780 reclassified most simple drug possession crimes as misdemeanors punishable by up to a year in prison, while SQ 788 calls for a $400 fine and no jail time for illegal possession of up to 1.5 ounces. Prior to SQ 780, first-time simple possession of marijuana was usually a misdemeanor, but the difference between these statutes still leaves law enforcement uncertain of which law to follow. 

Allowing licensed patients to grow and carry amounts of medical marijuana beyond what’s allowed in other states also concerns law enforcement. Oklahoma Bureau of Narcotics Director John Scully told the working group that he believes these loose restrictions will create an enormous black market and dramatically increase DUI rates. However, it’s not clear that this is the case. Data on the black market effects of legalization are difficult to track, but one recent report shows that three years after legalization, there was no statistically significant difference between the rates of DUI crashes in these states than those without legalization.

Yet another serious concern for policymakers is lab safety. Some marijuana businesses will likely create their own testing and safety process, but without a common regulation, there’s no standard method to ensure patient safety.

Legislators will ultimately have to balance advocates’ intent and the realities of regulation in the spring legislative session. For the time being, law enforcement and police will likely have to simply use their arrest and prosecutorial discretion to resolve the SQ 780 and SQ 788 conflicts. Legislators wary of voter discontent seem satisfied with adopting the Department of Health’s emergency rules temporarily, but they will have to confront all of these issues in 2019.

Damion Shade is criminal justice policy analyst at the Oklahoma Policy Institute.