New OBNDD Rules – Is It Time to Panic?
Many of you are familiar with the new emergency rules issued by the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD), but there are a lot of questions in the industry about the requirements of these rules and how they apply to cannabis businesses. This article will cover some of the new changes and how they affect cannabis growers, processors and dispensaries. The full text of the new rules is accessible here.
First, a bit of context. The OBNDD rules make some cannabis-specific changes to the existing Controlled Drug Act and its regulations. Cannabis is, of course, regulated differently than controlled drugs distributed in hospital and pharmacy settings, so the existing laws didn’t really work for cannabis. In addition to that, State Question 788 included some specific requirements that are different from the way that OBNDD regulates other industries. These rules attempt to bridge those gaps and clarify which aspects of the laws apply to cannabis and which do not.
The primary takeaway for business owners from the rules should be: formalize your security system and procedures. Many of you have alarm systems and locks in place, but you may not have an overall system that will meet the new requirements. At a minimum, you should have the following in place for any operating cannabis business:
Monitored security system, including cameras on the exterior, storage areas, retail space, and grow space. If you use keyed entry, it’s a good practice to set different alarm codes for each employee.
Self-closing, self-locking doors, with a keyless entry system wherever possible. If you must use keys, make sure that only necessary employees have a key. With a keyless entry, set a different code for each employee/owner so that you can track access if necessary.
Procedures to limit access to larger quantities of cannabis and cannabis products as much as possible. For example, in a dispensary, only designated employees should be able to access the product storage area. In a processing facility, any in-process products should be locked up and inaccessible with the exterior door keys/codes after normal working hours. Your procedures should also cover visitors to your facility, with a log of non-employees and an escort policy for each visitor.
If you have an outdoor grow facility or a greenhouse with transparent walls, you should have an 8 ft chain link or wooden fence that obscures the view of the growing area.
You should also take note of the details added to existing OMMA rules for other requirements. The OBNDD rules require that cannabis must be transported in a locked container out of public view, and clearly labeled as “Medical Marijuana or Derivative.” In addition to OMMA’s rules on inventory tracking and reporting, the OBNDD rules now require the facilities to maintain those records for at least seven (7) years.
One area that is still somewhat unsettled is the proper procedure for disposing of waste products. The OMMA rules do not provide any specific requirements for waste disposal. The OBNDD rules instruct businesses to dispose of spoiled, out of date or waste products in accordance with the Controlled Drugs Act (63 Okla.St.Ann. §2-101 et seq.), and the ODEQ Hazardous Waste Management Rules (OAC 252:205). However, those rules are not cannabis-specific and do not really fit the circumstances of this industry. The “Unity Bill” produced by the legislature’s working group requires such product to be “destroyed” and the destruction documented. If you wish to dispose of waste cannabis before this area of law is clarified, your best option is to lock up the materials in a secure area until specific methods are destruction are identified. It likely that Oklahoma will follow the example set by other states and require that waste cannabis is rendered unusable, by grinding the product up and then mixing it with sawdust, dirt, plastic or other material. Whatever route you follow, be sure to document the amount destroyed—in your inventory records and a waste log— time/date/place of destruction, and have a witness for the destruction.
You can rest assured that more of this type of regulation will be coming for the industry in the near future. Your best bet to stay ahead of the curve is to implement best practices in the early days of your business, so that you will be prepared to grow with the industry.
Erika Gee is the team leader of the Wright Lindsey Jennings Cannabis and Industrial Hemp practice (www.heartlandcannabislawyers.com) and a former Chief of Staff and Chief Deputy in the Arkansas Attorney General’s Office. Gee primarily focuses her practice on the regulatory and licensing issues affecting the pharmacy and medical marijuana industries. She has been actively involved in the implementation and licensure process for medical marijuana businesses in Arkansas and Oklahoma, including regulatory and legislative lobbying, drafting applications and regulatory compliance planning and representation for cultivation facilities, dispensaries, processing facilities, licensed transporters and other related businesses. She also represents clients seeking licensure to grow and process industrial hemp and who operate wholesale and retail CBD businesses.