The Challenge to OBNDD’s Redefinition of Clone Sales in Oklahoma
On April 16, 2025, the Oklahoma Bureau of Narcotics and Dangerous Drugs Control (OBNDD) issued a memorandum that caught much of the industry off guard: dispensaries transferring live, non-flowering cannabis clones must now obtain a manufacturer registration. According to the memo, these transfers constitute "manufacturing" under Oklahoma's Uniform Controlled Dangerous Substances Act (UCDSA).
The implications of this interpretation are broad and troubling, particularly given that the sale of clones has, until now, been a standard part of business for many dispensaries operating within the medical program. The sudden reclassification raises immediate questions about legal consistency, regulatory jurisdiction and the functional definition of cannabis manufacturing.
Let’s start line by line taking a look at how the memorandum justifies its broad application of definitions.
"Manufacturing" is defined in 63 O.S. § 2-101 of the Uniform Controlled Dangerous Substances Act as the production, preparation, propagation, compounding or processing of a controlled dangerous substance. "Manufacturer" also includes any person who packages, repackages or labels any container of any controlled dangerous substance. Id. "Production" includes the manufacture, planting, cultivation, growing or harvesting of a controlled dangerous substance. Id. Marijuana is a Schedule I controlled dangerous substance in the State of Oklahoma pursuant to 63 O.S. § 2-204.
In order to break this down appropriately we need to side step to take a closer look at clones and how the term “propagation” applies in rightful context.
What Is a Clone?
A cannabis clone is a cutting from a mother plant that has been rooted and is capable of being grown into a genetically identical plant. Importantly, clones are non-flowering and contain no meaningful levels of THC or other pharmacologically active cannabinoids at this stage. They are, for all intents and purposes, immature plant starts, not consumable cannabis.
Since OBN cites federal law to build it’s case, it should also be able to acknowledge under 7 U.S.C. § 1639o(1), the federal government defines “hemp” as any part of the Cannabis sativa L. plant, including “seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers,” with a delta-9 THC concentration of not more than 0.3% on a dry weight basis. Anything above that threshold is considered “marihuana” under 21 U.S.C. § 802(16).
By this definition, clones cannot meet the statutory threshold to be considered marijuana. They are biologically and legally incapable of qualifying as a controlled dangerous substance at the point of sale. The entire argument could end here, but for the sake of clarity, we’ll walk through the rest of their rationale anyway.
This is where the term "propagation" requires careful legal interpretation. In agricultural practice, propagation refers to the act of reproducing plants through cuttings, seedlings or other non-chemical methods. This is an ordinary, regulated farming process, particularly when involving non-flowering plants.
However, OBNDD is attempting to stretch the word "propagation" as it appears in 63 O.S. § 2-101(23) to equate agriculturally regulated plant starts with the manufacture of a controlled substance. That interpretation directly conflicts with the way “propagation” is treated in the Controlled Substances Act (CSA) and relevant case law.
When courts have interpreted terms like "manufacture" or "production" under the CSA, they have consistently linked them to the creation or extraction of usable, consumable or psychoactive substances—not the biological act of growing a plant. This can be highlighted by the current regulatory structure in Oklahoma. Cloning in this context is an agricultural process, not chemical synthesis or compounding.
Under the canon of ejusdem generis ("of the same kind"), when a law lists specific examples followed by a more general term, the general term must be interpreted in light of the specific ones. In this case, the inclusion of "propagation" alongside terms like "extraction," "chemical synthesis," and "compounding" suggests that it refers to scientific or chemical processes, not the agricultural act of rooting a cutting.
Put simply: propagation in the context of the UCDSA must be read in light of the other terms listed, like compounding, chemical synthesis and processing, which clearly refer to scheduled drug production, not horticulture. A rooted clone cut from a mother plant and sold to a licensed patient or dispensary is fundamentally different from the manufacturing of a controlled substance.
The statute clearly envisions manufacturing as the transformation of substances into consumable or psychoactive forms, particularly via chemical or mechanical means. Agricultural propagation, especially of a non-intoxicating plant, is not the kind of activity this law was written to address.
OBN continues:
“Clones are live marijuana plants which are produced, planted, cultivated, and grown for sale to medical marijuana patients. This process of producing and growing a clone marijuana plant is the manufacturing of a controlled dangerous substance as defined by the Uniform Controlled Dangerous Substances Act. Clones must be grown or "kept alive" until sold or distributed to the ultimate end user, the medical marijuana patient. The clone will continue to grow into a fully mature marijuana plant even after being sold to the ultimate end user. This means that the manufacturing process continues through delivery to the ultimate end user, but the ultimate end user is not required to register with OBN pursuant to 63 O.S. § 2-302 so long as the ultimate end user is acting in accordance with Oklahoma law governing the acquisition and possession of marijuana plants as a medical marijuana patient.”
This paragraph of the memorandum reveals a critical misunderstanding of both cannabis biology and the structure of Oklahoma’s regulatory framework.
First, the assertion that “manufacturing continues through delivery” fundamentally misstates how cultivation and manufacturing are treated in both statute and practice. Cultivation is its own distinct category under OMMA rules and within the broader medical marijuana regulatory framework. The act of keeping a clone alive until it is sold is not a continuation of manufacturing; it is routine agricultural maintenance—no different than a nursery keeping tomato or basil starts alive until purchase.
Second, cannabis clones are photoperiod-dependent plants. They remain in a vegetative, non-intoxicating state until exposed to a specific flowering light cycle. In other words, a clone is biologically incapable of producing THC or being “used” in any consumable way until a patient or grower takes additional cultivation steps. The plant, as sold, is functionally inert under the statutory definition of a controlled dangerous substance—because it is not usable, extractable or intoxicating.
The claim that the “manufacturing process continues” through transfer to a patient improperly extends liability beyond the point of lawful sale. There is no legal precedent that criminalizes a business for biological changes in a live plant after it has been transferred to a legally authorized patient. Once a product is lawfully transferred under regulated authority, the obligations of the transferring party are complete. There is no legal precedent in Oklahoma law that extends criminal manufacturing liability downstream to passive biological changes in a live plant after transfer to a licensed patient. If OBN's theory held, a flower shop could need a manufacturing permit for seeding and selling poppies because of what those plants might one day become.
The line that gives me most pause in this paragraph however is:
This means that the manufacturing process continues through delivery to the ultimate end user, but the ultimate end user is not required to register with OBN
OBN’s framing suggests that licensees are initiating a manufacturing process that continues with the patient despite that patient acting fully within the rights granted under Oklahoma’s medical marijuana program. The concern they raise isn’t about what the law allows, it’s about what OBN can’t control. By pointing out that patients “are not required to register with OBN,” the memo implies a regulatory gap that OBN cannot fill and therefore treats as a risk. The undertone is OBN suspects that patients may misuse their cultivation rights and that dispensaries selling clones are enabling that possibility.
That implication casts lawful behavior in a suspicious light. It subtly reframes the patient as a wildcard and the dispensary as a potential co-conspirator, despite both operating entirely within the legal structure set by state regulators.
Moreover, the principle of harmonious construction in statutory interpretation dictates that overlapping statutes (in this case, the Uniform Controlled Dangerous Substances Act, OMMA regulations and the Oklahoma Agricultural Code) must be interpreted in a way that avoids conflict and redundancy. ODAFF already regulates live plant material. OMMA regulates commercial business and patient activity. OBN’s sudden assertion of authority in this domain lacks legal foundation.
In United States v. McKinney, 686 F.2d 868 (10th Cir. 1981), the court held that criminal statutes must be narrowly and reasonably interpreted. Applying “manufacture” to the sale of clones—a non-intoxicating plant regulated as an agricultural product—violates this principle.
And under Chevron v. NRDC, 467 U.S. 837 (1984), agencies only receive deference when their interpretation is reasonable. Interpreting “propagation” to include agricultural cloning while ignoring the regulatory framework in place is far from reasonable.
Even if one were to narrowly apply the definition of “manufacture,” OBNDD’s enforcement memo creates a jurisdictional conflict. This memo essentially rewrites licensing obligations without public input or statutory amendment.
Oklahoma’s Administrative Procedures Act requires that agencies follow notice-and-comment rulemaking when establishing, modifying or expanding obligations on regulated entities. A policy that imposes new criminal exposure and fees cannot bypass that requirement. Licensees were given no opportunity for notice or comment, yet the policy redefines compliance expectations and introduces potential criminal exposure.
This raises serious due process concerns under both state and federal law. As clarified by Mathews v. Eldridge, 424 U.S. 319 (1976), agencies must balance private interest, risk of erroneous deprivation and the government’s interest when issuing policies that affect people’s rights. Here, licensees face criminal consequences based on an ambiguous, extra-statutory interpretation without any procedural safeguards.
In FCC v. Fox, 567 U.S. 239 (2012), the Supreme Court reaffirmed that agencies must provide clear notice before imposing penalties or shifting regulatory interpretation. Sudden reinterpretation by memo shared as a screenshot on social media, outside formal rulemaking, violates this standard.
The rule of lenity further requires that ambiguous criminal laws be interpreted in favor of the defendant. Here, the ambiguity in “manufacture” must be resolved in favor of licensees operating under good-faith regulatory compliance.
Clarifying Regulatory Authority on Clones
While OMMA regulates the medical marijuana program, including commercial growing operations and patient licensing, the Oklahoma Department of Agriculture, Food and Forestry (ODAFF) holds authority over the sale of live plants, including rooted cannabis clones, through its existing nursery licensing framework.
This is explicitly demonstrated in ODAFF’s own licensing guidance document:
“OMMA Growers – selling live plants (clones) will need a Nursery Growers License.”
“OMMA Dispensaries – selling live plants (clones) will need a Nursery Dealer License.”
(Source: ODAFF Ag Licenses for OMMA Businesses)
In addition, ODAFF’s Medical Marijuana FAQ draws a regulatory distinction between clones (live plants sold at the nursery stage) and marijuana cultivation and processing, explicitly stating:
Q: Can you tie my Oklahoma Department of Agriculture license to my OMMA license?
A: No, OMMA is a separate government agency.
Q: What are the regulations on growing marijuana?
A: Regulations on marijuana are set by OMMA. Please contact them.
This language confirms that ODAFF draws a line between its authority, focused on the retail and wholesale sale of live, rooted plants (clones), and OMMA’s authority, which pertains to cultivation, compliance inspections and marijuana-specific regulatory functions.
Clones are not a usable marijuana product. Oklahoma statute and administrative code makes the distinction in several instances. They are treated as nursery stock, a classification ODAFF oversees under its live plant sale rules. OMMA regulates what happens after that plant becomes part of a medical marijuana operation or reaches a patient.
OBNDD’s attempt to insert criminal manufacturing definitions into a space already regulated by two separate agencies, each with distinct scopes, is both jurisdictional overreach and a complete mischaracterization of the nature of the product itself.
To justify its interpretation, OBN leans heavily on the statutory definitions of “dispense” and “distribute” found in the Uniform Controlled Dangerous Substances Act. But when compared to OMMA’s own rules and the actual commercial practices within the medical marijuana system this reliance becomes legally untenable.
Per 63 O.S. § 2-101, the code defines:
“Dispense” as “to deliver a controlled dangerous substance to an ultimate user or human research subject by or pursuant to the lawful order of a practitioner…”
and
“Distribute” as “to deliver other than by administering or dispensing a controlled dangerous substance.”
These definitions presuppose the involvement of a Schedule I drug (which cannabis is under federal and state law) and a practitioner’s lawful order, such as a prescription. But OMMA’s entire program operates outside of that model. OMMA patients do not receive prescriptions; they receive recommendations. And cannabis is not dispensed by practitioners it is sold by licensees regulated under administrative, not criminal, frameworks.
OBN closes its memorandum with a directive:
“Accordingly, all dispensaries which manufacture/grow/cultivate/produce/propagate/distribute live clone marijuana plants must have a manufacturing registration with OBN... If you are currently registered with OBN as a distributor and selling live clones, please cease the sale of said clones immediately.”
While OBNDD has broad authority to regulate and enforce laws related to controlled dangerous substances under the UCDSA, it is not authorized to unilaterally reinterpret longstanding regulatory practices that fall under the jurisdiction of other agencies—particularly when no new statute or rule has been passed or promulgated to support such a shift.
OBN may enforce existing law. But this memo attempts to redefine what constitutes “manufacturing” in the context of cannabis clones despite the fact that:
OMMA has historically allowed licensed dispensaries to sell clones without a manufacturing registration;
ODAFF requires a nursery license to sell rooted live plants like clones, treating them as agricultural products, not manufactured drugs;
And no rule or statute has been amended to codify this shift in interpretation.
Under the Oklahoma Administrative Procedures Act (75 O.S. § 250 et seq.), agencies must use formal rulemaking when establishing new requirements that affect licensee obligations or expose regulated parties to enforcement. That process includes public notice, comment periods, legislative review and publication, none of which occurred here.
So while OBN has the authority to enforce drug laws, it cannot retroactively reclassify a standard commercial activity previously authorized and regulated by OMMA and ODAFF as a criminal act, solely by memo.
Even if the agency genuinely believes that clone transfers fall under “manufacturing” as defined in the UCDSA, proper interagency coordination, statutory amendment or formal rulemaking would be required to operationalize that interpretation.
Without it, licensees who have followed OMMA and ODAFF guidance for years are now told without warning or due process that they may be criminally liable for doing what state regulators previously permitted.
This imposes an immediate burden on licensees who have, until now, operated in alignment with OMMA and ODAFF regulations. Without any formal rulemaking or statutory amendment, businesses are now expected to either apply for a separate OBN manufacturing registration—at a cost of $2,500 compared to the $312 distribution permit—or end the sale of clones entirely eliminating patient access to propagation-ready plants and disrupting a regulated supply chain that has long been permitted. The only alternative is to continue operating as usual and risk enforcement based on a newly asserted interpretation of the law that contradicts years of agency practice.
This is not a minor clarification. It’s a fundamental shift in how clone sales are categorized and enforced, issued without warning, stakeholder input or legal infrastructure to support it. Licensees are left to navigate conflicting signals from agencies that previously provided clear, separate guidance. The result is regulatory confusion with significant financial and legal consequences—consequences that should never originate from a single memo.
We call on OBNDD to withdraw this memorandum and initiate a formal, public process if it believes a regulatory change is warranted. Any shift of this magnitude, one that affects licensing requirements, enforcement priorities and established interagency roles, must be made transparently and with input from those it impacts.
Until then, OMMA and ODAFF should clarify their positions to prevent further confusion. Businesses deserve consistent rules. Patients deserve stable access. And agencies should not bypass formal process to reinterpret law by internal memo.
If you hold a dispensary license from OMMA, a nursery license from ODAFF, and are operating under a single distribution registration with OBNDD, it would be wise to contact legal counsel immediately to evaluate your exposure.
