Regulations Revealed – You Can Have Input In the Process

I’ve said it over and over, the authors of Amendment XIV put a good deal of thought into how they were forming the regulatory framework of the Missouri medical cannabis industry. The Amendment places all of the authority within the Department which means the industry is not reliant on the much slower legislative process. The Department can promulgate rules at any time and get them in place in just four months. The Department also has emergency rulemaking authority, as we are all well aware since those rules were what we operated under for the first year. The speed and relative lack of political maneuvering in the regulatory process are a benefit to the newly licensed operators. However, that also means you have to be on the lookout for new regulations at any time.

The good news is anyone can submit a comment on a proposed order of rulemaking. The even better news is that the Secretary of State has made doing so relatively easy. If you have legal counsel or a lobbyist who is tracking these issues for you, you may not need to do so as well. If you don’t have someone on your team dedicated to watching the regulatory landscape, you will definitely want to keep an eye on it yourself.

The first step is signing up for notifications with the Secretary of State (http://www.sos.mo.gov/adrules/notifications). These notifications are free and will send you a notice anytime an agency you are tracking submits a proposed order of rulemaking. You can choose an entire agency or just the specific area of the rules you want to track. For most medical cannabis businesses, they will only need to track Title 19, Division 30, Chapter 95 – Medical Marijuana. Once you have signed up for the notifications, you only need to watch your email for notices.

When you see a proposed rule come through your inbox that concerns you, be prepared to comment on the rule. Comments are usually submitted through a suggestions form on the agency’s website. However, the forms allow the commenter to attach a file, and there are some things you can do to make your comment more useful and more likely to be taken into consideration.

First, identify the specific portion of the rule or topic you are addressing at the beginning of the comment. Don’t be vague or try to address an overall complaint. Find the specific piece of the proposed rule that is causing the most concern. You can always put a general objection at the end of your comment.

Second, state your reason for commenting. Your own personal experience is your best-supporting evidence, you are an expert in how the industry works. Explain how the change would affect your business or what effect it could have on interactions between the public and the agency. Do not focus only on inconvenience. Describe specifically, in monetary terms, how the rule change will make your business less viable. You can include in your document spreadsheets or other supporting information.

   

Third, avoid stereotyped phrases and sentences that give the appearance of “form letters.” They tend to be dismissed as less than sincere and produce little or no impact. Do use words like “undue burden” or “impossibility” to explain why the rule change is more than just an annoyance for licensees, patients, or applicants.

Finally, be reasonable. Don’t ask for the impossible. Don’t use hyperbole or threaten dire consequences unless they are a real possibility. Your comments are being read and analyzed by hard-working state employees and not necessarily by political appointees. Treat them like professionals.

As Missouri grows its medical cannabis industry, it is important for everyone interested in the issue to be involved in the regulatory process. You don’t have to be an attorney, physician, license holder, or patient to have an opinion about how the industry should work. You just need to be interested in the industry and take the time to keep yourself informed about what is being proposed. Already this year three new regulations were submitted for comment. Many more will follow as licensees start their operations. Take the opportunity to make your voice heard.

Quick Primer on the Regulatory Process in Missouri:

Missouri gives wide authority to agencies to develop rules and regulations. An agency can introduce any rule that falls within the scope of its authority. The rules are generally suggested by an employee and drafted by the agency’s general counsel. For most agencies, the proposed rule is screened by the Governor’s office before being filed with the Secretary of State and the Joint Committee on Administrative Rules (JCAR). The proposed rule is then printed in the Missouri Register and a 30-day public comment period is opened. Once the comment period is complete, the agency submits a final rule with JCAR for review. JCAR can choose to hold public hearings, or can just choose to take no action. If JCAR does not act to block the rule after 30 days, the agency can publish the final rule in the Missouri Register. If the agency has not published the final order of rulemaking in the Missouri Register within 90 days of the end of the comment period, the rule is void. The rule becomes effective 30 days after the final order of rulemaking is published in the Missouri Register.