I’ve received a number of questions regarding OMMA’s April 26th deadline for licensed dispensaries to obtain local Health Department food licenses. Here’s my take on what this means.
OMMA rules make it clear licensed processors are governed by the same food safety statutes as any other commercial food retailer, and those statutes require local Health Department licensing of any food retailer. In other words, beyond OMMA authority to license and regulate medical marijuana food retailers, the Health Department has separate authority to license and regulate all food retailers, including the authority to inspect food retailers, and issue citations for failure to obtain licensing or comply with food safety law.
In February of this year, OMMA placed licensed dispensaries on notice that failure to obtain local food licensing by April 26 could result in penalties. At the beginning of April, OMMA again posted notice to licensed dispensaries of this deadline, and on April 26, OMMA provided further guidance to licensed dispensaries, saying, “It is the responsibility of licensed processors and dispensaries to contact the appropriate entity to obtain the necessary license(s) by April 26, 2019.”
OMMA further said, “Inspectors from the Oklahoma State Department of Health will be completing inspections of OMMA licensed dispensaries and processors starting next month, which will include checking for compliance with food licensing. Failure to obtain a food license in accordance with state law could result in a citation.”
Here’s my reading of these facts: first, OMMA expects dispensaries to have, at the very least, contacted their local Health Department licensing agency by April 26 to begin the process.
Second, the authority to inspect and cite dispensaries does not come from OMMA regulations (which are limited to processors in this regard), but instead comes from the general Health Department food safety authority. Commercial medical marijuana licensees need to understand they cannot follow OMMA regulations only and remain in compliance; they are responsible for the rest of the legal code as well, especially food safety laws.
Third, the passage of the April 26 deadline places all dispensaries--those in the planning stages, those in the license-pending stage, and those with licenses--into one of three categories with regard to selling medical marijuana food products (edibles):
1. Those with OMMA/OBN licensing, and a local food license: may sell all medical marijuana products, including edibles;
2. Those with OMMA/OBN licensing, but not a local food license: may sell all medical marijuana products, except edibles;
3. Those in the planning/license-pending stage: may not sell any medical marijuana products.
Fourth, finally, and perhaps most critically, while OMMA guidance addresses on-site inspections by Health Department officers, it is also the case that all dispensaries must provide monthly reports to OMMA, including reports of all edibles sold. Any dispensary that does not have a local food license, and continues to sell edibles, will be in violation of law and OMMA guidance, and the violation need not be discovered by on-site inspection, since it will have to be reported to OMMA in the monthly reports anyway. In other words, simply because a dispensary is not inspected does not mean OMMA cannot learn about the violation. In fact, a dispensary selling edibles without a food license is under a separate legal obligation to report the violation itself.
I hope this helps to clarify the current state of Oklahoma medical marijuana law. If you have further questions, or if you’re interested in discussing retaining Brian Ted Jones, PC to help with your legal needs, you can get in touch here.