The state Board of Health this morning approved draft rules governing medical marijuana registration, testing and labeling. The proposed rules would limit participation in the program to individuals with an Arkansas drivers license or other state-issued identification — a development that the sponsor of the medical marijuana amendment said runs counter to the measure’s intent. The board also asked the legislature to restrict a qualifying patient’s ability to give marijuana to another qualifying patient.
Robert Brech, general counsel for the Arkansas Department of Health, presented the draft rules to the board this morning. Among other duties, the medical marijuana amendment charges ADH with issuing registration cards to patients (the draft rules establish a $50 fee per card, which must be renewed annually). In order to receive a card, a patient must be certified by a physician as having a “qualifying condition” specified by the amendment.
Brech said the draft before the board “does require, when an applicant asks for a registration card, that they submit … a copy of their Arkansas driver’s license or ID card. The amendment does not directly say that registrations are limited to citizens, but it implies it.” ADH drew that conclusion because the amendment includes a provision for a “visiting qualifying patient” from out of state to purchase marijuana from an Arkansas dispensary, Brech said. The amendment explicitly allows a patient from out-of-state to patronize an Arkansas dispensary if he or she holds “a registry identification card or its equivalent” issued by another state that “pertains to a qualifying medical condition.”
Limiting participation to Arkansas residents is a major issue partly because none of the states bordering Arkansas have medical marijuana programs of their own — and several large cities, including Dallas-Forth Worth and Memphis, are within easy driving distance of the Arkansas state line.
Brech said ADH’s decision was also shaped by a piece of guidance issued by U.S. Deputy Attorney General James Cole in 2013, which altered priorities for federal prosecutors in pursuing marijuana offenses. The “Cole memo” is seen as a landmark in federal drug policy, because it indicated the U.S. Justice Department would likely allow state-level medical marijuana programs to continue without aggressive DOJ interference. However, Brech said, the memo also indicated the Justice Department wanted to prevent marijuana from being “diverted” to states without such programs.
But David Couch, who authored the amendment that Arkansas voters approved in November, told a reporter later on Thursday that ADH’s interpretation was wrong. Couch said an earlier measure he sponsored in the 2012 election had included an Arkansas residency requirement, but that he “took it out on purpose” in the 2016 measure because he wanted patients from nearby states to be able to access the program. “Why should we deny them medicine?” he asked. Couch said that “states near us don’t have the same ability to get medical marijuana to voters,” because they have more restrictive rules for citizens to advance ballot measures — or don’t allow them at all. “Texas has no initiative process,” he said. He also noted that more patients would be a positive development for the budding Arkansas marijuana industry. “We have a chance to have a big jump on all our neighbors. … That equates to jobs and money.”
As for the Cole memo, Couch said, “I don’t think the feds are worried about Arkansas” when large states such as Colorado and California have legalized the commercial sale of marijuana outright. If federal policy towards marijuana should change dramatically under President Trump — which is unclear as of yet — states with “recreational” markets would likely be a higher enforcement priority than the many states with medical-only.
The ADH rules will now undergo a 30 day public comment period (likely to begin early next week), culminating in a public hearing and followed by legislative review. However, ADH is only one of three bodies tasked with rule-making authority over medical marijuana: The newly created Medical Marijuana Commission is creating rules for licensing dispensaries and cultivation facilities, and the Alcoholic Beverage Control Division is working on rules for regulating those businesses. And, the legislature may make any number of changes to the amendment itself, if a bill can muster a two-thirds majority in both chambers. Much remains fluid.
The draft rules are here. (Two changes were made to this draft today: A minor correction of a drafting error and a substantive change requested by the Board of Health to require a disclaimer on all marijuana products reading “this product is not approved by the FDA to treat, cure or prevent any disease.”)
Several members of the Board of Health — which is composed mostly of medical professionals — expressed great skepticism about the medical marijuana program in general. Brech was asked by one member of the board what a physician would do if he or she didn’t want to certify patients to receive medical marijuana. “No doctor would be required to certify someone,” he replied. “I think it’s going to be up to individual doctors … whether they feel this will be beneficial to their patients.” Anecdotally, he said, “a lot of doctors aren’t going to participate in this type of thing.”
Brech also told the board that nothing in the amendment prevents a physician from charging a fee to patients and that the amendment does not allow for a physician to specify a particular marijuana product for a patient. Rules about laboratory testing and labeling were drawn mainly from the state of Oregon’s rules, he said.
The board requested that the legislature make a change to the amendment regarding “diversion” of marijuana from a patient to another person. Patients may not give marijuana to non-patients: The amendment says that a cardholder who “transfers marijuana to a person who is not a qualifying patient or designated caregiver … shall have his or her registry identification card revoked and shall be subject to any other penalties established by law.” But, as Dr. James Zini pointed out, that language does not prohibit transfer of marijuana to another qualifying patient or caregiver. Brech confirmed that such a transfer appeared to be legal.
“That’s a problem,” Zini said.
Zini made a motion at the end of the meeting to seek legislative action. Dr. Nathaniel Smith, the ADH director, clarified the motion as such: “The intent is that the patient would only be able to use the marijuana that was purchased for that patient. So, transferring a patient’s marijuana to another patient or another designated caregiver — we would want that included in the prohibition on diversion.” The motion passed unanimously.
The board’s logic in requesting the restriction appeared to be the fact that prescription drugs are intended only for the patient who was written the prescription. (As Brech put it after the meeting, “If I have a hydrocodone prescription, I can’t share it with you.”) Although medical marijuana technically will not be prescribed by doctors — it can’t be, since it’s still federally classified as a Schedule I drug with no medicinal value — the Board of Health wants to put in place rules to regulate its distribution and transfer, just like other controlled substances.
“We have a product that is intended for human ingestion but that has no federal oversight or standards around it,” Smith told the board. “So the burden of ensuring the health of the public … really falls solely on state agencies. What we have tried to do is, within the limits allowed by this amendment, borrow from best practices from states that have already done this. … The oversight for this falls squarely on us, and we don’t have national standards or federal guidelines to help us with that process.”