Sticky situation

On June 26, Oklahoma voters approved State Question 788, which purports to “legalize” the growth, distribution and sale of marijuana for medicinal purposes.

A hard-fought campaign between the proponents of the state question and the business community which, in general, opposed the measure that was adopted by a 14-point margin, 57-43 percent.

“Oklahoma is now one of 30 states and the District of Columbia to authorize the use of marijuana for medicinal or recreational purposes,” OBA President and CEO Roger Beverage said. “The OBA stood with the State Chamber and many other business groups in opposition to this particular proposal in large part because of the way the question was worded.

“We’re working with the Chamber and others to better understand what employers may and may not do when it comes to having their employees use marijuana on the job or to show up at work on a marijuana ‘high.’ Separately, we’re working with our colleagues in other states that have also authorized the use of marijuana in some form to get federal law changed.”

Beverage pointed out even though approval of SQ 788 arguably makes it legal to grow, sell and use marijuana for medicinal purposes in Oklahoma, the real problem is federal law.

“The fact that medical marijuana was approved by a vote of the people, that (result) does nothing to change the fact that, under federal law, marijuana is illegal,” he said. “Even if it were legal under federal law, SQ 788 is not self-executing. For example, there are virtually no limits on what kind of ‘conditions’ one can come up with to qualify for a prescription to use the drug. Physicians have a great deal of latitude with which to authorize a patient to use it.”

Beverage explained that under federal law, marijuana is still a “controlled” substance. As such, it joins other drugs that fall under Schedule I of the Controlled Substances Act, 21 U.S.C. Chapter 13, Section 801, et seq. Each of the drugs listed on Schedule I meets the following requirements:

1. It has a high potential for abuse, including the potential to create severe psychological and/or physical dependence.
2. It has no currently accepted medical treatment use in the U.S.
3. It has a lack of accepted safety for use under medical supervision.
“These are just some of the drugs included on Schedule I,” Beverage noted:
Mescaline (Peyote).

“As you can imagine, these are pretty powerful drugs that have a long history of becoming addictive, he said. “What we’re doing is to help push a correction through Congress that’s being led by Sens. Corey Gardner (R-Colo.) and Elizabeth Warren (D-Mass.). The result would be to exempt the classification of marijuana as a Schedule I drug in states that have authorized its use in some manner.”

S. 3032, Section 710 would clarify that the provisions of the Controlled Substances Act dealing with classification of marijuana as a Schedule I drug would “not apply to any person acting in compliance with State law relating to the manufacture, production, possession, distribution, dispensation, (or) administration of delivery of marijuana.”

So far, this bill has yet to gain much traction in the Senate, and there’s no companion bill in the House.

“Before Jan. 1, of this year, there was what they called the ‘Cole’ memorandum that had been issued in 2014,” Beverage said. “The essence of it was telling Federal District Attorneys that they should focus on dealers and criminal elements rather than activities in states that had authorized the use of medical or recreational marijuana.

“In January of this year, the ‘Cole’ memo was revoked by Attorney General Jeff Sessions. As a result, it would appear the threat of referral for prosecution to the Justice Department is very real and the federal prohibition of growing, using or financing the business of marijuana distribution is much greater in 2018 than it was a year ago.

“No one knows for certain what this means in Oklahoma and similar states, and that’s what we’re working on to clarify the state of federal law.”