SOS rejects emergency amendment on sale of psychoactive hemp products by liquor licensees

In a significant move, the Missouri Secretary of State’s office recently rejected an emergency amendment proposal that sought to alter existing regulations under the 11 CSR 70-2.120. The amendment, proposed by the Department of Public Safety (DPS), was intended to address concerns raised by Governor Mike Parson’s recent Executive Order 24-10. However, the amendment failed to meet the strict criteria outlined in section 536.025, RSMo., which defines what constitutes an emergency situation warranting such a regulatory change.

Governor Parson’s Executive Order, issued earlier this month, highlighted the urgent need to regulate unregulated psychoactive cannabis products, such as delta-8 and delta-10 THC. The Executive Order directed the Missouri Department of Health and Senior Services (DHSS) and the Missouri Division of Alcohol and Tobacco Control to take immediate actions to ensure consumer safety, including the prohibition of these products in liquor-licensed establishments.

In response to this directive, the DPS sought to fast-track an amendment to the existing rules, bypassing the typical rulemaking process that includes public input and scrutiny. However, the Secretary of State’s office determined that the proposed amendment did not meet the emergency criteria as outlined in Missouri law. According to section 536.025, RSMo., an emergency amendment may be made, “only if the state agency:

 (1)  Finds that an immediate danger to the public health, safety or welfare requires emergency action or the rule is necessary to preserve a compelling governmental interest that requires an early effective date as permitted pursuant to this section;

(2)  Follows procedures best calculated to assure fairness to all interested persons and parties under the circumstances;

(3)  Follows procedures which comply with the protections extended by the Missouri and United States Constitutions; and

   

(4)  Limits the scope of such rule to the circumstances creating an emergency and requiring emergency action.”

“We commend the Secretary of State’s office for their diligent adherence to the directives outlined in Missouri law, specifically section 536.025, RSMo. This statute clearly defines the criteria for what constitutes an emergency, and the proposed amendment to DPS regulations did not meet that threshold. By rejecting the emergency amendment, the office has upheld the integrity of the law, ensuring that changes to important regulations are subjected to the formal rulemaking process,” Jeffrey Altmann of Viceroy Government Relations told Greenway.

The rejection of the emergency amendment means that any changes to the regulations will need to go through the standard rulemaking process, which includes opportunities for public comment and professional input. This process allows all interested parties, including consumers and industry professionals, to provide their feedback on the proposed changes.

Altmann continued, “This decision is a significant victory not only for the state of Missouri but also for the cannabis industry and the public at large. It underscores the importance of transparency and public participation in the regulatory process. Allowing the public, consumers, and industry professionals the opportunity to have their voices heard is vital to fostering a fair and balanced regulatory environment. We look forward to engaging in the formal process, where all stakeholders can contribute to shaping the future of the cannabis industry in Missouri.”

In Missouri, the process for creating, amending, or rescinding a rule by a state agency is governed by a series of steps designed to ensure transparency and public participation. This process is outlined in section 536.021 of the Revised Statutes of Missouri (RSMo.).

1. Notice of Proposed Rulemaking: No rule can be proposed, adopted, amended, or rescinded without the state agency first filing a notice of proposed rulemaking with the Secretary of State. This notice must be published in the Missouri Register and must include an explanation of the proposed rule or amendment, the legal authority for the rule, and the full text of the rule or relevant sections.
2. Public Comment Period: Once the notice is published, there must be at least a 30-day period during which the public can submit statements in support of or opposition to the proposed rule. The notice must also indicate if a public hearing will be held and provide details on the time and place for such a hearing.
3. Final Order of Rulemaking: Within 90 days after the public comment period ends, or after the hearing (if one is held), the state agency must file a final order of rulemaking with the Secretary of State. This final order can adopt the proposed rule, with or without changes, or withdraw the proposed rule entirely. The final order must also be published in the Missouri Register.
4. Contents of the Final Order: The final order must include references to the original notice, explanations for any changes made to the rule, summaries of comments or testimony received, and the legal authority for the rule.
5. Effectiveness of Rules: No rule, except for emergency rules, becomes effective until at least 30 days after it has been published in the Missouri Code of State Regulations. The final text of the rule is published in full in this code.
6. Attorney’s Fees in Contested Cases: If it is found that a state agency’s action should have been adopted as a rule but was not, and the agency was notified in writing before the hearing, the prevailing nonstate party may be awarded reasonable attorney’s fees.