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OHA Retail Marijuana Scientific Advisory Committee meets January 28

What : The monthly meeting of the Oregon Health Authority Retail Marijuana Scientific Advisory Committee. The meeting is open to the public.

Agenda : Review purpose and agenda; review and approve November 19, 2015, draft meeting minutes; update on marijuana rulemaking process, Senate Bill 844 and universal symbol; review baseline report "Monitoring Marijuana Use, Attitudes, Health Effects; wrap-up and future topics; public comment.

When : Thursday, January 28, 3-5 p.m. The public comment period begins at 4:45 p.m. All comments are limited to two minutes, or can be submitted to marijuana.science@state.or.us.

Where : Portland State Office Building, Room 1-B, 800 NE Oregon St., Portland.

Why : The Oregon Health Authority's Retail Marijuana Scientific Advisory Committee, based at the Public Health Division, provides scientific input to inform public health recommendations related to retail marijuana in Oregon. The committee is examining adverse health effects of retail marijuana use, and impacts of time, place, and manner of retail sale of potentially addictive substances.

The meeting site is accessible to people with disabilities. People who need alternate formats, sign language interpreters, physical access, or other reasonable accommodations should call 971-673-0984 at least 48 hours before the meeting.

Contact : Jonathan Modie, 971-246-9139, PHD.Communications@state.or.us - about the meeting. For more information about the committee, visit the committee's website >> Retail Marijuana Scientific Advisory Committee

TESTIMONY

To: Oregon Health Authority Medical Marijuana Rules Advisory Committee (RAC); Public Health Division Rules Coordinator, publichealth.rules@state.or.us
From: Bradley M. Steinman, resident of Salem, OR and Attorney at Law
Subject: Testimony In Opposition To Proposed Permanent Rules for Divission 333

My name is Bradley Steinman and I am a drug policy reform activist and Oregon licensed attorney that lives and practices in Salem, OR. I speak to you today in my individual capacity, and not on behalf of any client or organization.

I am writing today because the mission of the Oregon Health Authority is �to help people and communities achieve optimum physical, mental and social well-being through partnerships, prevention and access to quality, affordable health care.�

In contrast to the OHA�s mission, under the proposed permanent rules to implement the Oregon Medical Marijuana Act (OMMA), ORS 475B.400 to 475B.525, if implemented would �harm patient well-being and health, by preventing access to quality affordable health care.�

Oregon�s medical cannabis patients who suffer from the symptoms of debilitating medical conditions and whose doctors have found marijuana to be an effective treatment, deserve to have the costs of their medical care and their medicine subsidized by the State of Oregon, and not face increasing costs, less access, and worse overall quality of care.

I have six points to discuss:

1. ORS 475.338 no longer provides the OHA with any statutory authority and many of the proposed rules need to be modified to comport with ORS 475B.525, the amended version of the former ORS 475.338.

2. OAR 333-008-0000 should not be deleted from these rules. Rather, it needs to be amended to include ORS 475B.400�s findings, as amended in HB 3400, and which now provide that cannabis MUST be treated the same as all other medicines.

3. The ACMM needs to fulfill its statutory mandate and the rules should reflect the legislature�s decision. OAR 333-008-0110�s rule regarding the Advisory Committee on Medical Marijuana is not authorized by ORS 475.338. Rather, a specific statute which needs to be implemented prescribes the duties and role of the ACMM, which needs to be followed, pursuant to ORS 475B.520.

4. Simplify definitions for the various types of Growers pursuant to the HB 3400 statutory definitions. Make the rules reflect the statute�s limitations on who may be subject to inspection and �tracking light� under HB 3400. The proposed rules are ultra vires insofar as they subject 12 plant patient gardens to the same basic requirements and system as registered producers. Also, get rid of 333-008-0010(24)�s definition for �Grandfathered grow site�and all the grandfathering rules, or at the very least, extend the March 1st deadline for grandfathering, as it is unreasonable and unfair to limit grandfathering to that time.1

5. Get rid of the change in the definition of �Delivery� as found in (17) of the proposed rule�s first definition section. Keep the original definition.

6. Medical Marijuana is the Core of legal marijuana in Oregon. This is because �Recreational� marijuana is illegal, and an invitation to the federal DOJ to intervene in and challenge Oregon�s regulatory regime. Medical marijuana is federally recognized. Recreational marijuana has not been similarly ratified by any act of Congress.

The medical cannabis community is being denied its social well-being. Moreover, thousands of vulnerable patients who have found marijuana to be an effective treatment for their suffering caused by debilitating medical conditions will be denied their supply of medicine after they lose their growers, and as a result will have reduced physical, mental, and social well-being, and far less affordable health care.

1. ORS 475.338 no longer provides the OHA with any statutory authority and many of the proposed rules need to be modified to comport with ORS 475B.525, the amended version of the former ORS 475.338. Prior to the legislative session in 2015, this particular statutory provision provided the OHA with exclusively delegated authority to draft �All the rules necessary to implement the Oregon Medical Marijuana Act.�

The OHA no longer has exclusive regulatory authority over marijuana today.

The RAC needs to recognize that the OHA no longer has exclusive authority to enact rules necessary to implement the OMMA � there are other state agencies, such as the OLCC, DEQ, and Department of Ag, who have actually been delegated statutory authority or duties to regulate and implement much of what the OHA is overreaching for here.

The changed language of this provision, now codified at ORS 475B.525, provides:

(1) The OHA shall adopt rules necessary for the implementation, administration, and enforcement of ORS 475B.400 to ORS 475B.525.

1 160,000 people enrolled in the OMMP. 93% of all the medical marijuana in Oregon is grown at addresses where four patients or less are provided for. 41,000 of the 46,000 grow site addresses are 12 plants or less. 60% of all patients are over the age of 40.

(2) The authority may adopt rules as the authority considers necessary to protect the public health and safety.

There is some sleight of hand going on here.

The legislature�s changes to the OMMA under HB 3400, and the other pieces of legislation from last year, that is, the amendments and additions to ORS 475.300 to 475.346, which have been renumbered ORS 475B.400 to 475B.525, do not become operative until March 1, 2016.

However, pursuant to Section 179(2) of HB 3400, the OHA may take any action prior to the operative date of March 1, 2016, provided that is necessary to enable the OHA, [among other state agencies] on and after the operative date, to exercise all the duties, powers, and functions conferred on the OHA [and the OLCC and Department of Ag], pursuant to the laws that go into effect on March 1, 2016. That is, the OMMA, as amended in HB 3400, SB 844, HB 2041, and SB 460.

The OHA�s RAC is trying to have it both ways, but the law has been changed.

The state cannabis laws no longer provide exclusive statutory authority to the OHA to make ALL of the State�s cannabis related laws.

The OHA�s authority is now far more limited, and must be confined to its delegated authority under ORS 475B.525.

That means, its authority extends only to making those rules necessary to implement the amended OMMA and to making rules to promote the public health and safety.

There is no authority for the OHA to enact much or any of these proposed permanent rules that it believes to be authorized by its formerly �exclusive� statutory mandate to make ALL rules under ORS 475.338.

The public health and safety is the mandate of the OHA in terms of its implementation and administration of the amended OMMA.

I am confused as to why the text of about half of the new proposed permanent regulations seem to be so little concerned with the health and wellness of individual Oregonian patients suffering from debilitating medical conditions, and appear to read so much more like business and commercial regulations. More particularly, these rules appear close to verbatim, as the OLCC�s temporary rules for its �recreational marijuana� program.

These rules are designed to do one thing, and they would do it well - punish patients and OMMP cardholders, and promote the interests of big business over public health and the needs of individual patients suffering from debilitating medical conditions. These are business regulations, not public health regulations.

2. OAR 333-008-0000 needs to be amended to include ORS 475B.400�s amended findings, which provide that cannabis MUST be treated the same as all other medicines.

The former version of this statute provided that marijuana should be treated like other medicines. Now, this law is mandatory, and imposes a legal duty on the OHA to initiate rules that implement this command. It is unconscionable for the OHA to ignore the legislature�s mandate in HB 3400, and the people�s will in passing Ballot Measure 67 in 1998 � to treat marijuana like medicine. The first page of the proposed rules deletes the entirety of OAR 333-008-0000, the contents of which included a brief summary of the legislative history of the Oregon Medical Marijuana Act, and included the People of the State of Oregon�s legislative findings. This is entirely unacceptable in light of ORS 475B.300.

OAR 333-008-0000: Description of the Oregon Medical Marijuana Act needs to not be deleted.

The RAC is authorized and should be compelled to update this rule to Reflect the Amended Text of ORS 475B.400.

Moreover, it should account for the recent legislative history of the OMMA, as it has evolved considerably since 2007.

3. OAR 333-008-0110 Advisory Committee on Medical Marijuana is authorized not by ORS 475.338, but by 475B.520. S

Section 1 of the proposed ACMM rule changes and impedes upon the authority and statutorily delegated duties of the ACMM, far above and beyond the scope of what is permissible by the state law for the OHA to do in its attempt to cabin and delegitimize the ACMM and any of its efforts to come up with stronger patient protections and better policies.

The authority of the ACMM should be expanded, not reduced and knee-capped. This proposed rule is completely over the line.

By state law, it is the ACMM that �SHALL advise the OHA director on the administrative aspects of ORS 475B.400 to 475B.525(OMMA), including rules and fees adopted, and proposed for adoption under the OMMA[�].�

This rule needs to be updated to reflect the law, and not to contradict it or minimize the legislature�s delegation of a duty to the ACMM.

The OHA has a legal duty to provide staff and adequate resource support to the ACMM, and the OHA shares the same duty as ALL agencies of state government � �to assist the ACMM in the performance of its duties and to furnish information and advice to the ACMM, subject to what the members of the ACMM consider necessary to perform their duties.�

I believe it would even amount to a violation of the law to modify OAR 333-008-0110, without taking into account the input of the members of the ACMM, the true RAC for the OHA with respect to the OMMP. It is past time that the OHA took its legal obligations with respect to supporting and heeding the advice of the ACMM more, and not less seriously.

4. Petition And Approval of Petition for Grandfathered Grow Site Rules: Get rid of 333-0080010(24)�s definition for �Grandfathered grow site�and these rules.

This program is NOT authorized by ORS 475.338, as explained above.

This whole petitioning and approval system is ultra vires, burdensome, and to the extent it accomplishes the goal of HB 3400�s �patient-ratcheting down� policy provisions, there should still be a significant temporal delay with respect to the effective date of the whole grandfathering petition system, in order to fairly allow time for patients and growers to actually get in compliance with the new state law plant limits.

The transparent and obvious purpose of this policy is to establish artificial scarcity and diminished supply in the medical cannabis market, the same way that the DeBeers Diamond monopoly has artificially inflated the value of diamonds by making people believe there isn�t actually enormous stockpiled vaults of diamonds, because the world�s diamond market is monopolized and completely controlled by one enterprise. This keeps diamonds valuable, and their profits up, because folks never realize the truth � that diamonds would be a whole lot less valuable in a free and fair, competitive market, rather than a monopoly.

This whole grandfathering thing is designed to catch folks offguard, make criminals out of growers and patients, and is designed not to promote the public health and safety, but to promote the economic interests of the very few well capitalized growers and the commercial, OLCC production of for profit marijuana, by bigtime factory producers that are establishing economies of scale.

These provisions are unnecessary, and only serve to aid powerful out of state moneyed interests that are attempting to, and are largely succeeding at, achieving their vision of having Oregon become a consolidated, cartelized, oligopolistic and un-competitive market place for the supply of marijuana. Similarly, OAR 333-008-1225 � Packaging has an unfair timeline. This is one of a few proposed rules I saw that would be in effect for almost no time at all.

In this case, the packaging rule would only be in effect from March 1, 2016 until March 31, 2016.

That is nonsense.

5. Get rid of the change in the definition of �Delivery� as found in (17) of the proposed rule�s first definition section.

Delivery should maintain the meaning it had in the rule that is being deleted.

Patient to patient transfers are a core aspect of the compassionate supply system of medical cannabis, and is crucial to safe access and the well-being of Oregon�s most vulnerable patients.

6. Medical Marijuana is the Core of legal marijuana in Oregon. Recreational marijuana is an invitation to the federal DOJ to intervene in and challenge Oregon�s regulatory regime. Medical marijuana is federally recognized. Recreational marijuana has not been similarly approved by Congress or the federal Courts.

In the landmark 2008 California case County of San Diego v. San Diego NORML, a California appellate court concluded that that State�s medical marijuana registry identification card program laws did not pose a significant impediment to specific federal objectives embodied in the federal controlled substances act (�CSA�).

This was because Congress expressly provided the CSA's primary purpose was �to combat recreational use of drugs, and not to regulate a state's medical practices." (i)

The Supreme Court of the United States of America has also ruled that the primary purpose of the federal CSA is to combat �drug abuse�, which is defined as the non-medical, recreational use of a federally controlled substance such as cannabis, but was never meant to extend to the direct regulation of a state's medical practices. And in December, for the second year in a row, Congress has passed spending appropriations legislation that recognizes the medical use of marijuana, and the legitimacy of the cultivation, possession, use, and distribution of marijuana for medical purposes.

There is no reason that the OHA should be turning the OMMP�s confidential patient registry into an additional recreational marijuana industry licensing regime. The OHA is not the OLCC. If these rules pass, then our entire legal marijuana system in this state will be insufficient to meet the Cole Memorandum�s stated priorities, and will fail to survive federal preemption litigation were the DOJ to challenge our state�s laws.

There can be no �discretionary� enforcement by the state of its own laws. The rules should not allow for enforcement or compliance waivers. There should be clear standards and requirements, and enforcement of the law based on objective criteria. Under the current proposed rules, state and local employees, as well as OMMP cardholders and registrants, will be subject to federal criminal and civil penalty enforcement, to the extent that the state employees are not �enforcing� state law and rules by compelling compliance.

The OHA must implement and actually enforce valid laws that serve to protect the public health and safety, and promote safe access to quality medicine for patients, and affordable prices.

Let�s see another try at these rules that has an actual basis in the state�s medical cannabis laws and reality, instead of the fantasies of a for-profit commercial marijuana monopoly at the expense of the interests of patients and small family businesses in Oregon.

To conclude, I believe that Oregon�s medical cannabis patients who suffer from the symptoms of debilitating medical conditions and whose doctors have found marijuana to be an effective treatment, deserve to have the costs of their medical care and their medicine subsidized by the State of Oregon, and not face increasing costs, less access, and worse overall quality of care.

Very truly yours,

Bradley M. Steinman
Salem, OR

(i> County of San Diego v. San Diego NORML, 165 Cal.App.4th at pp. 826-827, 81 Cal.Rptr.3d 461, citing Gonzales v. Oregon (2006) 546 U.S. 243, 272-273, 126 S.Ct. 904, 163 L.Ed.2d 748 [CSA is a �statute combating recreational drug use" rather than an "expansive" interposition of "federal authority to regulate medicine".)

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