First, kudos to the Hawaii Department of Health for publishing interim administrative rules for the state’s new medical marijuana industry weeks earlier than anticipated.

The Dec. 15 rollout gave prospective business owners nearly a month to look at how the department will regulate the industry before the license application period opens. The interim rules offer a guideline under the statute, passed last legislative session, allowing the creation of a grow-and-distribution industry for Hawaii. They will guide the first legal marketplace for the medicine since Hawaii first legalized it 15 years ago.

Civil Beat was among those who took the state agency to task in October, when it announced the rules wouldn’t be available until Jan. 4. Every day counts, for a complex new industry facing not only the challenges of opening for business next July, but of navigating the cultural and social changes represented by making medical marijuana available in a retail environment.

Legislators have time to improve statutory language regulating medical marijuana and the administrative rules implementing the law before the industry launches in July of 2016.
Legislators have time to improve statutory language regulating medical marijuana and the administrative rules implementing the law before the industry launches in July of 2016. Abd allah Foteih via Flickr

And this wasn’t the only recent obstacle the fledgling industry had to overcome. Only three months ago, the state Supreme Court Disciplinary Board issued an opinion that attorneys might be held criminally liable for helping clients apply for licenses, create their business frameworks and open medical marijuana businesses. That prompted a hasty rule change late the following month by the state Supreme Court to allow those attorneys, some of whom had dropped their medical marijuana clients, to step back in and do their jobs.

In such a dynamic environment, making the rules public three weeks earlier than promised establishes some much-needed certainty. Health Director Dr. Virginia Pressler, new medical marijuana program leader Margaret “Peggy” Leong and their team deserve credit for moving faster to get the rules out well before the holidays.

The new program will award eight licenses in total. Each licensee will be allowed to have as many as two production centers and two retail dispensaries, for a total of 16 dispensaries available to patients statewide.

The license application period for those businesses opens for 17 days starting Jan. 12. Three licenses will be awarded for the City and County of Honolulu, two each for Hawaii Island and Maui County and one for Kauai.

Medicine is medicine. There shouldn’t be a modern-day “blue law” banning medical marijuana sales on Sundays, as the current law and rules do.

Overall, the 60-plus pages of rules seem appropriate to an industry that will provide medicine to patients throughout Hawaii. The rules are needed to ensure the integrity of the production process and supply chain. They also seem largely in keeping with those in the 22 other states that permit medical marijuana use and, in many cases, sales through licensed dispensaries.

But there are some considerations specific to Hawaii that haven’t yet been included in the rules. They should be addressed in the 2016 legislative session before the first dispensaries open next July.

Leong says the interim rules were written “very close” to the statute, so if changes are to be put in place, they’ll require quick evaluation by legislators and Gov. David Ige. Leong and Pressler will brief members of the Senate Commerce, Consumer Protection and Health and House Committee on Health today at 1:30 p.m. on “areas of further policy development related to medical marijuana dispensaries.”

According to Sen. Will Espero, Senate vice president and a member of the committee holding the hearing, here are a few of the ideas most likely to be up for discussion:

First, allowing sales on Sundays. Medicine is medicine. There shouldn’t be a modern-day “blue law” banning medical marijuana sales on Sundays, as the current law and rules do. For the most part, lawmakers and state officials have avoided conflating marijuana’s medical and recreational uses; they should do so in this case, too, for the sake of patients.

Second, transportation between our islands. Currently, the law forbids transporting medical marijuana between islands. But what if a dispensary’s grow operation is wiped out through disease or human error — shouldn’t that business be able to buy and transport product from a neighbor island’s grow operation to serve patients without fear of reprisal?

And shouldn’t patients, who might live on one island but be receiving medical treatment or need to visit family on other islands, be able to engage in inter-island travel with both their medicine and peace of mind?

Even more problematically, if both Maui County dispensaries are located on Maui, there would be no dispensary for the more than 7,000 residents of the island of Molokai. Under the current law, there would be no legal way for patients there to get medical marijuana from a licensed dispensary and bring it home.

We support an additional license for the Big Island, which, despite having only 185,000 residents as opposed to Oahu’s 1 million, is home to more medical marijuana patients than Oahu.

The irony of making no medical provision for an island best known as the former home to Hawaii’s most tragic medical exiles and their patron saint, Father Damien, must be addressed, perhaps in the license-approval process and certainly in transportation permissions.

Third, we support an additional license for the Big Island, which, despite having only 185,000 residents as opposed to Oahu’s 1 million, is home to more medical marijuana patients than Oahu.

Geography students know that all of Hawaii’s other major islands could be placed on the Big Island with room to spare. Patients there could find themselves far from the nearest dispensary, and given the ailments from which they might suffer, such travel could present a significant challenge. Making another license or another single dispensary available for the Big Island is entirely appropriate to lessen the burden on those individuals.

Former Felons, Greenhouse Growing, More

Fourth, the current rules prohibit felons from working in grow operations or medical marijuana dispensaries. But that seems to defeat the ideal of convicted criminals paying their debts to society, being rehabilitated and moving back into productive roles.

We support a modification that would allow felons who have remained crime free for six years following their conviction to work in the industry.

Fifth, the current law and rules preclude cultivation in traditional greenhouses. They require that marijuana be grown in an “enclosed structure” — an element that was added to enhance security, according to Espero. But that would prevent growers from taking advantage of Hawaii’s advantageous climate; and it would add millions in utilities costs for indoor cultivation — costs that would be passed along to patients.

Other states with poorer weather (Illinois and Maine, for instance) permit greenhouse cultivation. Yet, they seem to be faring well, from a production and security standpoint. It is possible to adequately address security concerns in a greenhouse environment, and we would support legislation to make that possible for Hawaii.

Lastly, there seems to be some support for expanding the list of diseases for which medical marijuana is allowed and/or recommended. Espero is pushing for diagnoses of arthritis, anxiety, stress and insomnia to be included. “When you talk to health care professionals, they typically support all four of these without question,” he told Civil Beat.

We don’t find any of those unreasonable on their face. But we also recognize they could potentially blur the line between marijuana for medicinal and recreational purposes. We support a discussion and testimony from Pressler and Leong on what appropriate prescription standards would look like for each of these additional diagnoses.

Hawaii has a little more than six months to bring this industry to life in an environment of best practices, benefiting from the experience of other states and addressing issues specific to our own. The interim rules are an important step toward that, and this afternoon’s hearing is a key opportunity to prepare further well-advised steps for the legislative session.

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