Just hours after Oklahoma Attorney General Mike Hunter advised Tom Bates, interim commissioner of the Oklahoma Board of Health, that the Board had acted outside of its statutory authority in promulgating several medical marijuana rules, the Board president announced his intention to call a special meeting to amend the regulations.

In his letter to Interim Commissioner Bates, Hunter addressed several areas of legal concern. Specifically:

• The rules improperly limit and prohibit the sale of smokable, vapable, and other forms of marijuana. Because the ordinary and usual meaning of the term “marijuana” and the phrases “consume marijuana” and “use marijuana” encompasses smoking as well as consuming edible forms of marijuana, such consumption is legal and the Board does not have the authority to, by its own initiative, prohibit it.
• The rules improperly impose licensing requirements that conflict with the statute voters approved. In particular, the rules improperly require every licensed dispensary to have “a current licensed pharmacist” present “on-site at least 40 hours per week.” Hunter found that nothing in the text of SQ 788 expressly or impliedly authorizes this rule.

According to Hunter’s letter, several other rules raise similar concerns about lack of statutory authority, including without limitation:

• Restricting dispensaries to limited locations
• Prohibiting dispensaries from co-locating with other businesses
• Requiring medical marijuana be grown, processed and dispensed in enclosed structures
• Requiring a surety bond for licensing
• Setting hours of operation
• Limiting the amount of THC in flower, leaf or concentrate for sale or distribution

Hunter’s letter concluded by recommending that the Board reconvene to reconsider the rules in a manner consistent with his advice.  Shortly thereafter, Board President Tim Starkey released a statement saying that he had asked the interim commissioner and his staff “to make sure the appropriate modifications are made as outlined by the Attorney General in today’s correspondence” and that a special meeting to consider those changes would be called.