Legislators tell officials to kill rules on pakalolo not in law

Hawaii lawmakers criticized top Department of Health officials on Monday over new rules governing the growth and sale of medical marijuana, saying that health officials may have overstepped their statutory authority by prohibiting the use of greenhouses and excluding official retail outlets from selling rolled marijuana cigarettes and certain smoking paraphernalia.

“I get very frustrated when executive departments establish rules that go beyond what the Legislature opined,” Sen. Roz Baker (D, West Maui-South Maui) told health officials who testified in front of a joint hearing of the House Health Committee and Senate Commerce, Consumer Protection and Health Committee. “The Legislature makes policy and the executive branch implements that policy. So I would like you … to look at those rules and in areas where they go beyond what the statute says specifically, take them down. They don’t belong there.”

This year, Hawaii joined at least 18 other states in legalizing the commercial production and distribution of medical marijuana. Under Act 241, 16 medical marijuana stores are expected to open starting July 15.

In the meantime, the Health Department is working to implement the law and earlier this month released rules regulating the industry that provide greater clarity and specificity to the statute.

The two-hour briefing amid a packed hearing room at the state Capitol often grew contentious as lawmakers went on to grill Health Department officials on myriad other issues. They said health officials need to clarify what constitutes a single marijuana plant, that the department’s online registration system is confusing, and that some of the information on the department’s website about the new law is wrong.

Health officials at times pushed back, emphasizing that they are doing their best to comply with the intent of the statute under a hasty timeline for implementing the law and limited resources.

“So the magical thing about when you guys pass laws and then we have to implement them is that there is no staff and no money to get it done,” said Scotty Ruis, the Health Department’s medical marijuana registry coordinator, in response to questions about how long it’s taking to issue people’s medical marijuana cards.

Overall, health officials maintain that they’re doing a good job implementing Act 241. The department has sped up processing medical marijuana applications and was three weeks ahead of schedule when it released the new rules regulating the industry earlier this month.

But the intense interest in the law, particularly among companies seeking to bid on what industry observers say are very lucrative medical marijuana contracts, has raised the level of scrutiny.

One of the most contentious issues has been the prohibition against greenhouses.

Lawmakers didn’t specify in the law they drafted whether it would be permissible for companies to grow marijuana in greenhouses. The language of the law only says that marijuana production must take place in “enclosed, indoor facilities,” raising immediate questions about whether the plants would have to be grown under lights in warehouse facilities.

Marijuana growers say that the cost of electricity in Hawaii, which tends to be double to triple the national average, would burden the industry with unnecessary costs that would end up being passed on to consumers.

Sen. Russell Ruderman (D, Puna) said that the cost of electricity for one facility was expected to run $200,000 a year.

“In a state with the best sunlight and highest cost of electricity, you have eliminated the fundamental ability of plants to transform sunlight,” said Ruderman.

Health officials didn’t explain why they had specified the restriction and it’s not clear whether they were attempting to comply with the language of the statute, which refers to indoor growing conditions and locked structures with tight, around-the-clock security.

Lawmakers also complained about a ban on selling rolled marijuana cigarettes, or joints.

“It’s like telling the liquor store, you can’t sell beer,” said Sen. Will Espero (D, Ewa Beach-Iroquois Point), adding that the prohibition just sounds “illogical, wrong and without thought.”

Act 241 is silent on rolled marijuana cigarettes. The law specifies that companies can sell capsules, lozenges, pills, oil and oil extracts, tinctures, ointments and skin lotions, while giving the Health Department discretion to add other products.

Department of Health Director Dr. Virginia Pressler said her department has aggressively advocated against inhaling tobacco and any other product other than an inhaler because of health risks.

But she said that under the medical marijuana law “patients can do whatever they like with the product after they purchase it.”

Lawmakers said that if the Health Department doesn’t act to make amendments to the rules, the Legislature may step in to tweak the law.

In wrapping up the hearing, Pressler assured lawmakers that her department had heard lawmakers’ concerns and would take them into consideration.

“I do appreciate what has been expressed,” she said. “This is a very contentious issue with a very aggressive timeline and we are doing the very best to follow the statute and not exceed it.”

If the Health Department does amend its rules, it will likely have to be soon. On Jan. 12, the Health Department is scheduled to open an 18-day bidding window to companies interested in competing for eight medical marijuana contracts.

Each license allows a company to operate two marijuana production centers and up to two retail stores. Three licenses will be issued for Oahu; two licenses each for Hawaii and Maui counties; and one license for Kauai.

To bid on a license, a company must show that it has at least $1 million worth of financial resources for each license, as well as $100,000 for each retail outlet.