Marijuana (Cannabis): Oregon Implementation Experience Shannon O’Fallon, Sr. AAG Oregon Department of Justice

So much to talk about, so little time Oregon’s legal history with cannabis Overview of the state system, medical & adult use Possession limits Labeling & Packaging Concentration limits Attending physicians State cannabis laws applicable to health care providers & health care facilities

Marijuana: US Legal Status US DEA Controlled Substances Act Schedule 1 High potential for abuse No currently accepted medical use in US (federal level); clinical trials lacking 2018: State Laws 30 States Medical MJ 9 recreational

A Brief History of Cannabis in Oregon 1988 Oregon voters approved the Oregon Medical Marijuana Act In 2004 & 2010 voters rejected ballot measures that would have allowed the retail sale of medical marijuana 2012 – voters reject legalization 2012 – legislature approves a medical marijuana dispensary program 2014 – voters say yes to legalization Under OMMA in 1988, 4 immature plants, 3 mature plants, 1 oz. of MJ 2005 possession of up to 24 oz. of MJ, 6 mature plants, 18 seedlings or starts

Overview of state regulatory system Oregon Liquor Control Commission (OLCC): adult use (recreational) businesses and worker permits Oregon Health Authority (OHA): medical marijuana program, concentration limits and testing Oregon Department of Revenue (DOR): tax collection Oregon Department of Agriculture (ODA): commercial kitchens, scale certification, certain food handling activities, pesticides Local jurisdictions: law enforcement, governing bodies, code enforcement

Basic Facts about legalization Personal possession & use permitted without license/registration, within limits, as long as all aspects non-commercial. To engage in any commercial activity involving cannabis, must be licensed or registered with the state.

What legalization did not do Amend or affect state or federal employment law. Prohibit a recipient of a federal grant or an applicant for a federal grant from prohibiting the manufacture, delivery, possession or use of marijuana to the extent necessary to satisfy federal requirements. Prohibit a party to a federal contract or a person applying to be a party to a federal contract from prohibiting the manufacture, delivery, possession or use of marijuana to the extent necessary to comply with the terms and conditions of the contract or to satisfy federal requirements. Require a person to violate a federal law. Exempt a person from a federal law or obstruct enforcement of federal law.

Personal Possession Limits One or more persons at least 21 years old in a household can have the following at any one time: 4 marijuana plants. 8 oz. of usable marijuana. 16 oz. of marijuana products in solid form. 72 oz. of marijuana products in liquid form. 16 oz. of concentrate. 1 oz. of purchased extract.

Oregon Liquor Control Commission OLCC issues licenses/permits to and regulates Producers Processors Wholesalers Retailers Labs Workers ( worker permit required) Tracks cannabis through METRC – a seed to sale tracking system Establishes standards for packaging and labeling

OLCC Licensing Statistics Totals as of September 13, 2018 Active and Approved Licenses Laboratory 22 Processor 193 Producer 1091 Retailer 581 Wholesaler 131 Research License Total 1,794 Active and Approved Permits Worker Permits 51,895

Oregon medical Marijuana Program

Patients Patient with qualifying debilitating condition must apply, pay fee ($200 but there are reduced fees), submit Attending Physician Statement annually. Debilitating medical conditions include: Cancer, glaucoma, HIV or AIDS, severe pain, severe nausea, seizures, and PTSD. Physicians do not prescribe, but recommend that cannabis may mitigate symptoms of debilitating medical condition.

Caregivers and Growers Patient can designate caregiver & third-party grower, or can grow for themselves. Caregiver is defined as “person with significant responsibility for managing the well-being of a person who has been diagnosed with a debilitating medical condition” Growers and grow sites must be registered and pay additional fee. Can stack growers at an address. No limits on where grow sites can be under state law. Limits on the number of plants depending on where grow site is.

Oregon Medical Marijuana Possession Limits Marijuana Item Type Medical Program Immature plants 2 or 6 times as many as mature depending on size Mature plants 6 Usable marijuana 24 oz. Products – solid N/A so defaults to personal limit (16 oz.) Products – liquid N/A so defaults to personal limit (72 oz.) Concentrates Extracts N/A so defaults to personal limit (1 oz.)

OMMP Registration Stats Jan. 2015 July 2018 Patients 70,139 39,410 Caregivers 35,064 15,592 Growers 45,785 19,358 Grow sites 35,765 15,933 2016 July 2018 Dispensaries Around 400 5 Processing Sites 3

Packaging Package cannot be attractive to minors No cartoons No consumer products, symbols, or celebrities typically marketed towards minors Package cannot contain any false or misleading statements Health claims Use of term “organic” Child-Resistant Package OR Exit Package at point of sale Child resistance is defined by 16 CFR 1700 Type of packaging will vary based on marijuana item Label information on packages must be unobstructed and conspicuous

Labeling Non-generic labels for marijuana items must be approved prior to sale. As necessary to protect public health & safety, labels for marijuana items must have: Health and safety warnings; Potency and activation time, if applicable; For cannabinoid products, concentrates and extracts, serving size and the number of servings included in a package; and Content of the marijuana item. For cannabinoid food and drinks, labels must meets applicable state food labeling requirements for the same type of non-cannabis food or drink.

Labeling Symbols Universal Symbol Medical Grade Symbol

Testing OHA sets testing standards for both adult use and medical. Testing for: Pesticides Solvents THC and CBD Any lab doing cannabis testing must be accredited by OHA and licensed by OLCC Sampling must be done by laboratories

Concentration Limits Law requires OHA to establish “dosage” limits for maximum concentration of THC permitted in a single serving, and number of servings permitted for cannabinoid concentrates, extracts and products.

amount of THC per serving Max. Concentr.of THC/container Concentration Limits Type of Product Retail Concentration/ amount of THC per serving Medical Concentr./ Max. Concentr.of THC/container Max. Concentr.of THC/ container Edibles 5 mg N/A 50 mg 100 mg Topicals 6% Tincture 1,000 mg 4,000 mg Capsule 10 mg Mg Suppositories Defaults to edible limit Transdermal Patches Concentrates & Extracts OHA required to establish: Maximum THC level permitted in a single serving of a cannabinoid product, concentrate or extract; and Number of servings permitted per package.

Attending physicians Recommendation to use cannabis must come from physician. 21 physicians in Oregon account for 73% of physicians recommending medical cannabis. Oregon Health Authority developed guidelines for physicians recommending medical use of marijuana. http://public.health.oregon.gov/PreventionWellness/marijuana/Documents/OHA-9262-Attending-Physician-Guidelines.pdf Oregon Medical Board cannot take action against physician who provides medical advice about cannabis as long as advice based on person’s medical history and condition and risks discussed.

Organization as Cannabis Caregiver An organization that provides hospice, palliative or home health care services, or a residential facility that has significant responsibility for managing the well-being of an OMMP patient may be designated as an additional caregiver for the patient.       Such a designation allows the “organization” or residential facility to possess cannabis. Organization or residential facility that is designated as a caregiver has all the duties, functions and powers of an individual caregiver.

Prohibition against taking disciplinary action against licensee Oregon law prohibits a licensing board from imposing discipline against a licensee based on the licensee’s medical use of marijuana under the Oregon Medical Marijuana Act or actions taken by the licensee if the licensee is a designated caregiver. Oregon law permits a licensed health care professional to administer medical marijuana to an OMMP patient in a licensed health care facility if the administration of pharmaceuticals is within the licensee’s scope of practice. Can’t administer in a public place or in the presence of a person under 18 years of age. If the medical marijuana administered is smoked, adequate ventilation must be provided. (Conflict with ICAA) State law not does not require: A licensed health care professional to administer medical marijuana; or A licensed health care facility to make accommodations for the administration of medical marijuana.

Oregon Case Law re: Marijuana Washburn v. Columbia Forest Products, 340 Or. 469 (2006): Medical marijuana user fired for testing positive for MJ, alleged disability-related discrimination in the workplace. Question was whether an employer was required to make a disability-related accommodation for the employee. Employer had policy that prohibits employees from reporting for work with controlled substance in their system. OR Supreme Court found that the individual was not disabled under Oregon law, and therefore, no duty to accommodate.

Oregon Case Law Continued Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159 (2010): Employer wanted review of BOLI decision concluding that it had engaged in disability discrimination when it discharged employee due to med. MJ use. Court found that OMMA affirmatively authorizing use of med. MJ was preempted by federal CSA which expressly prohibits use. Therefore, OMMA users not protected by statute prohibiting disability discrimination.

The Challenges It’s illegal under federal law! No guidance from CMS on the issue (something like the Cole Memo?) Residential facilities – resident rights Lack of research/data

Resources Oregon Health Authority Medical Marijuana Website: http://public.health.oregon.gov/DiseasesConditions/ChronicDi sease/MedicalMarijuanaProgram/Pages/legal.aspx. OLCC Recreational Marijuana Website: http://www.oregon.gov/olcc/marijuana/Pages/default.aspx. Report on cannabis research; Legal barriers to cannabis research: https://public.health.oregon.gov/DiseasesConditions/ChronicD isease/MedicalMarijuanaProgram/Documents/sb844taskforce/ SB844Report.pdf. Oregon Retail Marijuana Scientific Advisory Committee: http://public.health.oregon.gov/PreventionWellness/marijuana /Pages/Retail-Marijuana-Scientific-Advisory-Committee.aspx.

Oregon Laws Oregon Revised Statutes (ORS) 475B: Cannabis Regulation https://www.oregonlegislature.gov/bills_laws/ors/ ors475B.html (doesn’t contain all current laws) ORS 475B.400-.525 is Oregon Medical Marijuana Act ORS 475B.005-.395 is Recreational Cannabis Oregon Administrative Rules OHA, Chapter 333, Divisions 7 & 8 http://arcweb.sos.state.or.us/pages/rules/oars_300/oar_333/333_tofc.html OLCC, Chapter 845, Division 25 http://arcweb.sos.state.or.us/pages/rules/oars_800/oar_845/845_025.html

Contact Information Shannon O’Fallon Senior Assistant Attorney General Oregon Department of Justice shannon.ofallon@doj.state.or.us 971.673.1950