With barely two weeks to go before prospective medical-marijuana business owners can apply for dispensary licenses at the Department of Health, some state lawmakers see some big problems with new rules the department announced earlier this month.

Bans on Sunday sales and on greenhouses and a lack of any definition of a marijuana “plant” were among the issues that lawmakers and patient advocates voiced to Department of Health officials at a Monday briefing at the Legislature on Hawaii’s medical marijuana dispensary program.

The program rules, published on the DOH’s website Dec. 15, were written “very close” to the statute, Act 241, said Margaret “Peggy” Leong, the state’s new medical marijuana program leader.

The interim rules offer a guideline under the dispensary law, passed last legislative session, which will grant eight licenses across the state.  Under the law, the state’s first legal medical marijuana businesses can have as many as two production centers and two retail dispensaries, for a total of 16 dispensaries statewide.

Prospective marijuana businesses owners can apply for licenses beginning Jan. 12. But several lawmakers took issue with some of the health department’s rules, saying officials overstepped their authority by making policies that differ from the statute. 

Asked pointedly by House Health Committee Chair Della Au Belatti whether the DOH planned to change the rules, Keith Ridley, an administrator at the DOH said “there’s no plan to do that.”

Committee on Health Chair Rep. Della Au Belatti leads an informational hearing on medical marijuana with Dept of Health Director and more. 28 dec 2015. photograph Cory Lum/Civil Beat

Committee on Health Chair Rep. Della Au Belatti leads an informational hearing on medical marijuana on Dec. 28, 2015.

Cory Lum/Civil Beat

For instance, the dispensary law requires that marijuana be grown in an “enclosed structure,” but it doesn’t specifically ban greenhouses. But according to regulations posted on the department’s website, greenhouses are not allowed.

That would prevent growers from taking advantage of Hawaii’s sunny climate; and it would add millions in electricity costs for indoor growing, which would be passed on to patients.

“I get very frustrated when executive departments establish rules that go beyond what the Legislature (allows),” said Sen. Rosalyn Baker, chair of the Senate Commerce, Consumer Protection and Health Committee. “The (health department) should not be making policy when … it was either not stated specifically or it goes beyond what the Legislature established.”

Meanwhile, Sen. Will Espero voiced concerns about the fact that pre-rolled joints are not permitted, despite being one of the quickest, easiest methods for patients to take their medication.

“To say that a person can’t smoke or you can’t sell a joint at a medical marijuana dispensary for a qualified patient who is sick and in need of medicine just sounds illogical and wrong,” said Espero.

The DOH rules also force dispensaries to close on Sundays, something that contradicts the dispensary law’s goal to increase patients’ access to medicine, he added.

“I think our legislative attempt may be different than some of (health officials’) thinking,” Espero said.

Informational hearing at the Legislature as Senator Will Espero gestures while asking questions about language used by the Dept of Health. 28 dec 2015. photograph by Cory Lum/Civil Beat

Sen. Will Espero questioned whether the DOH took the right approach when balancing public safety and patients’ needs.

Rep. Au Belatti, the health committee chair,  said the rules ban dispensaries from selling “paraphernalia” or supplies for using marijuana in a smokable or inhalable form. This would ban vaporizers, which are popular mode for patients to consume specific doses of medication without inhaling smoke.

The rules also prevent products infused with marijuana, like candy or baked goods.

“This may be an area where we might have to step in as the legislature,” said Au Belatti. Lawmakers can introduce new laws during the 2016 session that would force the DOH to change the rules.

The House health committee chair also was concerned that the interim rules failed to define “plant.” Production centers can have up to 3,000 plants under the statute, but currently, the rules don’t differentiate between mature plants, clones or seedlings. 

Ridley of the DOH said he could offer “no additional insights” on whether “plants” would be defined at some point.

The process to award licenses also came under scrutiny by patient advocates. Under the rules, businesses will be awarded licenses based on the number of points in different categories, such as whether they can pass a background check.

“We are concerned as an industry that this might not result in the most qualified people,” said Antoinette Lilley, president of the Hawaii Dispensary Alliance.

Trever Asam, an attorney at Cades Schutte, LLP, said there could be problems when it comes to taxing marijuana. Under the statute, medical marijuana would be subject to the state general excise tax – currently, other prescription medicine is exempt.

Meanwhile, dispensaries could also be eligible for tax breaks if they’re established in enterprise zones, which are aimed to stimulate certain types of businesses such as agriculture in areas where they are needed most.

Yet despite the public and lawmakers’ concerns, DOH officials say they’re making progress on the program. They have created a list of frequently asked questions on their website to increase transparency in the dispensary application process.

The department also awarded a contract to Bio-Tech Medical Software Inc. for $159,000  to implement a computer software system to track plants from seed to sale.

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