By Anthony Taylor – Oct/Nov 2015
Anthony Taylor is the President of Compassionate Oregon and has unique access and insights into Oregon’s lawmaking process, much of which takes place in the Oregon capital building, which is located near the corner of Church and State in Salem.
Ballot Measure 91 specifically stated “… the Act may not be construed to affect or amend the Oregon Medical Marijuana Act” and “[d]o not affect or amend in any way the functions, duties or powers of the Oregon Health Authority under the Oregon Medical Marijuana Act.”
In ignoring this directive, the Legislature adopted changes to the Oregon Medical Marijuana Program the impact of which has not been seen since the Legislature last adopted sweeping changes in 2005. Even those changes did not have the enormous effect on patients that these changes will have. Many of these changes have not been well received by patients, growers, or the industry.
Effective dates unrealistically put in place under HB 3400 put pressure on state agencies to adopt rules quickly, and the Oregon Health Authority (OHA) has felt that pressure.
With a new program administrator, two separate marijuana advisory committees, unrealistic effective dates and a mandate to adopt rules that also apply to other agencies, it has not been an easy task for the OHA.
The rule process involves not only writing the rules but doing so within a specific time frame required under the Administrative Procedures Act. This has proved challenging. The Act requires rules to be filed with the Secretary of State’s office in time to allow the agencies affected by those rules to establish forms, application processes and compliance and enforcement procedures.
In addition, rules may be adopted as either permanent or temporary. All the rules adopted to date have been temporary, allowing an additional six months to re-work problem areas for inclusion in the final, permanent rules.
For the OHA, this has involved writing rules for packaging, labeling and testing that will apply to the Oregon Liquor Control Commission, Oregon Department of Agriculture and the OHA itself. With input from the Retail Marijuana Scientific Advisory Committee formed by the OHA to address public safety issues around legalized marijuana, the Advisory Committee on Medical Marijuana (ACMM) and the general public, the temporary rules have generated concerns from all sectors, including the infused products manufacturers, labs, and industry in general.
The current RAC began meeting in November to develop rules for HB 3400 and SB 844, and will wrap up their meetings before the end of the year and submit final temporary rules in January.
Issues facing the OHA include establishing rules for the new medical marijuana processors license, application procedures for patients under new patient and plant limits and rules for dispensaries and labs.
The new laws adopted under HB 3400 established effective dates, including a March 1, 2016, deadline regarding new plant limits. The complexities of this rule have created challenges for the OHA. They also created an unreasonably short transition period for patients who need to find new growers because of the reduced number of patients allowed per address.
Indeed, the “grandfathering” of grow site addresses has complicated the application process. Now required will be confirmation of age and residency for growers, approval of grandfathered addresses by the OHA and the need to make sure all patient applications are not designating grow site addresses that are already at the new limits.
For instance, under new patient/plant limits, the OHA will have to look to the next year to determine whether a designated address exceeds the number of patients allowed under the new law. This, as of now, will be done on a first-come first-served basis by the OHA and any grow site address submitted by a patient must be cross-checked to ensure that no applicant’s designated address exceeds the number of patients per address allowed under the new law. Any address that has more than the number of patients allowed under the new law must cut their patient numbers by March 1, 2016.
If you are the 17th patient designating a specific rural grow site address, your application will be rejected. The worst case scenario under these limits is a renewing patient who becomes the 17th patient to apply at his own address would be denied and have their application rejected. This patient would not be allowed to grow their medicine on their own property.
We can expect many changes in the future for cannabis laws under these rules, whether adopted by OLCC, OHA, ODA or the Department of Revenue. We all need to remain vigilant in attending hearings, reviewing draft rules and submitting our comments and proposed changes.
This is not an easy task in the fast paced world of writing and adopting administrative rules.
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