Cannabis advocates in conservative Oklahoma scored a win with the passage of the state’s medical marijuana initiative, Question 788, in last month’s primary election. But now they’ve been hit with a setback as the state Health Board decreed that retail sales of smokable cannabis will be excluded from the program. And the problem isn’t unique to Oklahoma — as medical marijuana patients in Florida are continuing to fight the state government in the courts over their right to smokable cannabis.
Did Oklahoma’s Health Board Violate the Will of the Voters?
The law that voters approved actually included provisions for possession of up to eight ounces and six mature plants. But on July 10, the Oklahoma Board of Health, weighing implementing regulations for the new law, voted to place a ban on the sale of smokable forms of cannabis.
Patients who want to grow their own cannabis to smoke still will be allowed to. But this decision will mean hardship for many, cannabis advocates say. The Oklahoman, in reporting the news, quoted Raymond Jennings of Broken Arrow, who credits inhaling cannabis with allowing him to survive cancer and chemotherapy treatments. “I can tell you, without smoking marijuana, I wouldn’t be here today,” he told the newspaper. “It’s the only thing that stopped the nausea.”
Also quoted was Health Board member Chuck Skilings, who said that allowing the sale of smokable cannabis would be a step backward for public health. “I don’t think we’re protecting the public that doesn’t smoke,” he said. “I think we’re imposing a hazard.” Yet cigarettes, of course, are freely available in Oklahoma.
Julie Ezell, the state Health Department’s general counsel, meanwhile warned that the edict is in conflict with the language of Question 788, and therefore may not survive a legal challenge.
And that challenge is likely coming. A lawsuit has already been broached by the state chapter of the American Civil Liberties Union. “The health department shouldn’t pretend to be everyone’s doctor,” said Ryan Kiesel of the Oklahoma ACLU. “Smokeable marijuana or marijuana products derived from the smokeable parts of the plant are the best delivery systems for some patients. And, those need to be made on a case-by-case basis,” he told Oklahoma’s News 4.
Smokable Cannabis Reversal in Florida Courts
But this very issue was just heard by a court in Florida — which upheld an even more restrictive law, at least for now.
The state’s First District Court of Appeals in Tallahassee on July 3 refused to grant an injunction allowing the use of smokable cannabis, finding that litigants challenging this restriction in the state law were not likely to win.
Medical marijuana became law in the Sunshine State with voter approval of Amendment 2 in November 2016. But the state legislature later imposed a total ban on the use of smokeable forms under the program. This has been enforced by the state Health Department, which has issued orders to dispensaries to desist from selling “whole flower” products. This policy comes despite the fact that vaping is permitted under the Florida law, and retailers said that was what the bud was intended for.
As the Tampa Bay Times reports, the case was brought by Orlando lawyer John Morgan and others who asserted that the ban on smokable cannabis violated the will of the voters. A lower court in Leon County found in their favor in May, but the state appealed.
Cathy Jordan, one of the plaintiffs in the case, testified that smoked cannabis has kept her alive decades after doctors predicted she would die from Lou Gehrig’s disease.
The case remains pending, as do other legal challenges to the Florida restriction.
In addition to Florida, states with “medical marijuana” programs that bar use of smokable cannabis include New York, Louisiana, Minnesota, Ohio, Pennsylvania and West Virginia.
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