In a significant move, the Missouri Secretary of State’s office recently rejected a proposal to amend existing regulations pursuant to 11 CSR 70-2.120. The change 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 change did not meet the strict criteria in Section 536.025, RSMo., which defines what constitutes an emergency situation warranting such a change in regulations.
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 banning these products in alcoholic establishments.
In response to this instruction, DPS attempted to expedite a change to the existing rules, bypassing the usual rulemaking process that involves public input and oversight. However, the Secretary of State’s office determined that the proposed change did not meet the emergency criteria set forth in Missouri law. Under section 536.025, RSMo., an emergency change may be made, “only if the public authority:
(1) The judge finds that an imminent danger to public health, safety or welfare requires urgent action or that the regulation is necessary to protect a compelling governmental interest requiring an earlier date of entry into force as permitted under this section;
(2) Follow procedures that are best suited under the circumstances to ensure fairness to all interested persons and parties;
(3) follow procedures consistent with the protective provisions of the Missouri and United States Constitutions; and
(4) The scope of this Regulation shall be limited to circumstances which give rise to an emergency and require emergency measures.’
“We commend the Secretary of State’s office for diligently following the policies set forth in Missouri law, particularly Section 536.025, RSMo. That law clearly defines the criteria for an emergency, and the proposed change to DPS regulations did not meet that threshold. By rejecting the emergency change, the office maintained the integrity of the law and ensured that changes to key regulations would go through the formal legislative process,” Jeffrey Altmann of Viceroy Government Relations told Greenway.
Denying the emergency amendment means that any changes to the regulations must go through the usual legislative process, which includes opportunities for public comment and professional input. This process allows all interested parties, including consumers and industry experts, to provide 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 general public. It underscores the importance of transparency and public participation in the regulatory process. Enabling the public, consumers and industry experts to voice their opinions is critical to promoting a fair and balanced regulatory environment. We look forward to engaging in the formal process where all stakeholders can help shape the future of Missouri’s cannabis industry.”
In Missouri, the process for a state agency to create, modify, or repeal a rule is governed by a series of steps designed to ensure transparency and public participation. This process is described in Section 536.021 of the Revised Statutes of Missouri (RSMo.).
- Notice of proposed rulemaking: No rule may be proposed, adopted, amended, or repealed without the State agency first filing a notice of proposed rulemaking with the Secretary of State. Such notice shall be published in the Missouri Register and shall contain an explanation of the proposed rule or amendment, the legal basis for the rule, and the full text of the rule or relevant sections.
- Public comment phase: There must be a period of at least 30 days after publication of the notice within which the public may submit statements in support of or opposition to the proposed rule. The notice must also indicate whether a public hearing will be held and details of the time and place of such a hearing.
- Final order of rulemaking: Within 90 days after the end of the public comment period or after the hearing (if one is held), the state agency must submit a final rulemaking regulation to the Secretary of State. This final regulation may adopt the proposed regulation with or without modifications, or may withdraw it entirely. The final regulation must also be published in the Missouri Register.
- Content of the final order: The final order must include references to the original notice, explanations of any changes made to the rule, summaries of comments or testimony received, and the legal basis for the rule.
- Effectiveness of the rules: Except for emergency regulations, no regulations will become effective until 30 days after they are published in the Missouri Code of State Regulations. The final text of the regulations will be published in full in that Code.
- Legal costs in disputes: If it is determined that a government agency’s action should have been adopted as a rule but was not, and the agency was given written notice of that fact prior to the hearing, the prevailing nongovernment party may be awarded reasonable attorneys’ fees.
