A bill by state Sen. Jason Rapert (R-Conway) to prohibit the smoking of medical marijuana passed out of the Senate Public Health committee this morning on a party line vote. It now heads to the full Senate.
(UPDATE, 7 p.m.: Meeting again in a late afternoon session, the committee also passed a bill banning the sale and production of edible marijuana products in Arkansas, with an exception for edibles prepared by medical marijuana patients or their caregivers.)
Senate Bill 357 adds a line to the Arkansas Medical Marijuana Amendment, which was just approved by voters in November, stating that the amendment does not permit a person to “smoke marijuana in any location in Arkansas.” Rapert said other delivery mechanisms would still be allowed, including vaporizing. The senator argued smoking is harmful and is not an acceptable means of delivering any medicine to a patient. He also claimed that people who voted for the medical marijuana amendment four months ago didn’t envision patients smoking the drug when they cast their ballots.
“If I had my way I would restrict a lot of the other forms of this as well, but I was hoping at least we could say we’re not going to allow smoking of marijuana,” Rapert said.
Testifying against the bill was Rep. Doug House (R-North Little Rock), the legislature’s de facto point person for most of the marijuana-related legislation this session. House said a prohibition on all smoking was too broad and could cripple the state’s nascent marijuana industry by driving patients into the existent black market. “If we say ‘No smoking wherever tobacco smoking is prohibited,’ I’m fine with that,” House said. “But this bill goes one step further.”
Another bill sponsored by Sen. Rapert that would have blocked the entire medical marijuana program indefinitely failed for lack of any support on the committee. SB 238 would have delayed implementation of the medical marijuana amendment “until the effective date of the legalization of marijuana in the United States.” Fully contravening the will of Arkansas voters was evidently a bridge too far for the committee.
Speaking on SB 357, Rapert said he believes Arkansans were confused about what they were voting for in November. “People that voted for the Arkansas Medical Marijuana Amendment, I think they actually thought they were going to be voting on medical marijuana, which we all know is available in the form of Marinol before this amendment ever passed whatsoever. You could get marijuana in pill form before this amendment ever came forward.” The amendment that passed “isn’t about medicine at all. It’s about basically having a headache or stumping your toe and getting access to be able to smoke marijuana anywhere you want to,” he declared.
Rapert said other states have allowed for legalizing medical marijuana but banned it from being smoked; he named New York, Pennsylvania, Ohio and Minnesota. Arkansas has spent “hundreds of millions of dollars talking about the dangers of [tobacco] smoke and secondhand smoke,” he said. He acknowledged the amendment passed in the November election, but said the legislature should use its authority to impose stricter regulations. “Let’s just not wrap up snake oil in a joint and smoke it,” the senator said.
Scott Pace, the CEO of the Arkansas Pharmacists Association, did not explicitly endorse Rapert’s bill but said “we don’t think any legitimate medicine [is smoked].” Pace admitted that “people probably voted to smoke, though we don’t think that’s the right way to do it. … We think we should discourage the use of smoking to the extent possible.”
Jerry Cox of the Arkansas Family Council, a lobbyist for socially conservative causes, spoke in favor of the bill: “Smoking is a recreational activity … It’s not medicine, it never has been medicine.” Cox said advertisements promoting passage of the amendment didn’t indicate people would be smoking cannabis. “Not a single ad that the proponents ran … showed people smoking marijuana. … People [were] led to believe this would largely be about oils, capsules and other types of use.” He worried that if a parent smoked marijuana at home, the secondhand smoke would affect “the little baby in the crib … the teenager trying to do homework.”
Melissa Fults, who previously led a campaign for an alternate medical marijuana ballot measure and now heads an organization called the Drug Policy Education Group, spoke against the bill. She said it was ironic that opponents of cannabis now claim voters were misled into thinking the marijuana amendment didn’t legalize smoking, since their own advertisements showed people smoking pot. “All they talked about was smoking. … According to opponents, that was the only way to use it,” she said. Fults agreed that other delivery methods were superior to smoking, health-wise: “We’ve always encouraged [patients] — try to use a vape if you can, try to use edibles.” However, she said, it shouldn’t be ruled out. “If you have a cancer patients who needs immediate relief … smoking it is the only option,” Fults declared, and added that a specialized vaporizing device can be expensive. She also argued that smoking marijuana was not as dangerous as its opponents claimed.
(As with all things related to marijuana, legal prohibitions have prevented scientific research from being performed regarding the health risks of smoking the cannabis. A recent National Academies of Sciences meta-study showed “substantial evidence” that heavy smoking is correlated with worse respiratory symptoms and a higher incidence of bronchitis. However, it found “moderate evidence” that there is not a link between smoking marijuana and developing lung cancer, or cancers of the head and neck, as there is with tobacco.)
Rep. Doug House argued that a ban on smoking would harm the sale of medical marijuana. The street price of good-quality pot is around $250 to $300 an ounce, he said, while vape oils can sell for $1,300 to $3,500. “Here’s my concern. There’s a fully functioning underground market right outside that window there,” House said, gesturing toward a window. “If a young man, young woman who is a patient comes in and they see that $1,300 oil or $3,500 oil, and they know they could buy it on the street for $250 to $300, they’re going to walk out of the store. And this whole system we are building from scratch collapses, because the customers don’t come.” He said that’s happened in New York: “Basically, the stores are empty; they go buy the cheaper stuff on the street.”
Joe Thompson, a former surgeon general for the state and current president of the Arkansas Center for Health Improvement, spoke for the bill. “I think just rationally, it doesn’t make sense to set something on fire and breathe it into your lungs. I think there’s a growing amount of evidence that marijuana may have medical uses. … I would agree that inhalation is one of the most fast and effective delivery methods for drugs. … I just think this is opening up a path for broader use and a mechanism that is not required to get the medicinal goals.”
The roll call on the vote was 5-2, with Democratic Sens. Stephanie Flowers and Eddie Cheatham voting no.
Earlier in the morning, Rapert presented SB 238, his bill to entirely halt the rollout of the medical marijuana program. “All of us … take an oath of office to … uphold the Constitution of the United States,” he proclaimed, and since marijuana remains “patently illegal” at the federal level, it should not be legal in Arkansas. Rapert said the federal judiciary has undone Arkansas’s attempts — via state constitutional amendments — to ban same-sex marriage and abortion, but added, “I don’t see the state of Arkansas going down to board up the doors of the abortion clinic.” He complained that Arkansas officials seemed ready to “completely ignore” federal law in this case.
Despite many Republicans’ skepticism toward medical marijuana, Rapert’s proposal didn’t secure a single vote. Sen. Scott Flippo (R-Mountain Home) said he strongly opposed the medical marijuana amendment in 2016, but said “I don’t think this was any kind of secret that this was illegal under federal law when people voted on this.” He noted that the ballot measure was vetted by the state attorney general and allowed to stand by the state Supreme Court. “I wonder at which point we as a legislature should be tasked with overturning the will of the people and something they voted for,” he said. “If they want to challenge this in federal courts and overturn it, I would have no problem with rolling it back whatsoever,” Flippo said. But, he noted, the federal authorities don’t seem inclined to do that.
No one spoke for SB 238. Fults, Rep. House and others spoke against it.
Rapert’s bills were not the only marijuana-related legislation in committee today. House Bill 1451 by Rep. Trevor Drown (R-Dover) would prohibit members of the military or National Guard from participating in the medical marijuana program. It passed unanimously.
A controversial bill by Rep. House and Sen. Missy Irvin (R-Mountain View) that would tighten restrictions on out-of-state ownership interests in dispensaries and cultivation facilities was debated extensively but then pulled down by Irvin when it appeared it would fail. HB 1371 will likely return. Opponents of the bill, including the law firm of former Attorney General Dustin McDaniel, argued it would run afoul of federal law by restricting interstate commerce.