Medical Marijuana in Ohio in 2017

Hi everyone – it’s been a little while since I’ve posted here. Our family moved, work got busier than anticipated (which is a good thing), and all of that occurred right smack in the middle of the holiday season. But fear not, the Ohio Marijuana Law Blog is back in full swing to keep you updated on all of the latest news on medical cannabis in the Buckeye State.

Ohio continues the medical marijuana rule-making process

The rules for Ohio medical marijuana cultivators will be finalized in May, with the rules for medical marijuana dispensaries, processors, testing laboratories, and recommending physicians finalized in September. The Ohio cultivator rules have been submitted to the Common Sense Initiative, and public comment on the rules are being accepted through this Friday, January 27. Ohio dispensary rules are in their initial draft, although this round of public comments closed on January 13 – there will be other opportunities to provide input.

Some highlights from these latest drafts:

• The number of Level II cultivator licenses has increased to 12, and the “marijuana cultivation areas” of both categories has increased: Level I cultivators can have a cultivation area of 25,000 square feet, while Level II cultivators are limited to a cultivation area of 6,000 square feet.
• If approved by the Department of Commerce, cultivators can expand their facilities not more than twice, each time up to doubling their original size – meaning that Level I cultivators could potentially obtain 75,000 square feet of cultivation area, while Level II cultivators could potentially obtain 9,000 square feet of cultivation area.
• Ohio would license up to 40 medical marijuana dispensaries, dispersed throughout the state in yet-to-be-defined geographic territories.
• The Board of Pharmacy would require dispensaries to have a “clinical director” either on-premises or available by phone during all hours that dispensaries are operating. A “clinical director” can be either a pharmacist, physician, physician assistant, certified nurse practitioner, or clinical nurse specialist.

I’ll cover each of these drafts in greater detail here in the coming days. It is interesting to note that a draft of House Bill 523 originally required a pharmacist to be present in medical marijuana dispensaries, although that requirement was removed prior to the law going up for a vote. Now it seems the Board of Pharmacy is seeking to re-insert a similar requirement.

The United States Senate Has Yet to Confirm Attorney General Nominee Jeff Sessions

Alabama Senator Jeff Sessions, whom President Donald Trump has nominated to be his next Attorney General, is waiting on confirmation from the United States Senate. His confirmation hearings generally went off without a hitch, and when asked about legal marijuana, Sessions would not commit to “not enforcing federal law,” although he acknowledged the problem with scarce federal resources.

As Fortune reports:

On Tuesday, Sessions was not quite as emphatic on the issue as he has been in the past. In reference to the guidelines issued by the Justice Department in 2013 that effectively left marijuana law enforcement up to individual states, Sessions told Sen. Leahy “some of them are truly valuable in evaluating cases, but, fundamentally, the criticism I think that is legitimate is that [the guidelines] may not have been followed.” Sessions went on to say he would need to use “good judgment” when deciding how to enforce federal marijuana laws, should he be sworn in as Attorney General, adding “I know it won’t be an easy decision, but I will try to do my duty in a fair and just way.”

Following his confirmation hearings, Sessions provided written responses that again addressed legal marijuana (which are conveniently packaged in Tom Angell’s new daily marijuana newsletter, which you should all subscribe to):

• “While I am generally familiar with the Cole memorandum, I am not privy to any internal Department of Justice data regarding the effectiveness and value of the policies contained within that memorandum… I will certainly review and evaluate those policies, including the original justifications for the memorandum, as well as any relevant data and how circumstances may have changed or how they may change in the future.”
• “I will not commit to never enforcing Federal law. Whether an arrest and investigation of an individual who may be violating the law is appropriate is a determination made in individual cases based on the sometimes unique circumstances surrounding those cases, as well as the resources available at the time.”
• A recent federal court ruling that a Congressional rider prevents the Justice Department from going after people complying with state medical marijuana laws “is relatively recent, and I am not familiar with how other courts may have interpreted the relevant appropriations language or the Ninth Circuit’s opinion. As an emerging issue, that is one that will need to be closely evaluated in light of all relevant law and facts… I will conduct such a review. Of course, medical marijuana use is a small part of the growing commercial marijuana industry.”
• On “good people don’t smoke marijuana”: “My words have been grossly mischaracterized and taken out of context… I was discussing the value of treating people for using dangerous and illegal drugs like marijuana, and the context in which treatment is successful.”
• “I echo Attorney General Lynch’s comments [on marijuana being illegal], and commit, as she did, to enforcing federal law with respect to marijuana, although the exact balance of enforcement priorities is an ever-changing determination based on the circumstances and the resources available at the time.”
• “I will defer to the American Medical Association and the researchers at the National Institutes of Health and elsewhere about the medical effects of marijuana. Without having studied the relevant regulations in depth, I cannot say whether they may need to be eased in order to advance research; but, I will review this.”

There can be no doubt that Senator Sessions is a marijuana prohibitionist, but I do think it is fair to say that his responses are no worse than those given by President Obama’s Attorney General, Loretta Lynch, during her own confirmation hearings in 2015. She said the following when questioned by Senstor Lindsey Graham:

“Marijuana is still a criminal substance under federal law. And it is still a crime not only to possess, but to distribute under federal law.”

“With respect to the marijuana enforcement laws, it is still the policy of the administration and certainly would be my policy, if confirmed as attorney general, to continue enforcing the marijuana laws, particularly with respect to the money-laundering aspect of it.”

And she also said this when questioned by Senator Sessions:

“Well, senator, I certainly don’t hold [the view that marijuana should be legalized], and don’t agree with that view of marijuana as a substance. I certainly think that the president was speaking from his personal experience and personal opinion — neither of which I am able to share.”

Sessions can rescind the 2013 Cole Memo at a moment’s notice following his confirmation, although there are significant practical and political risks to doing so: more than half the country has legalized some form of medical marijuana and the industry supports thousands of jobs and a significant amount of taxes to cash-strapped states. For some additional context, see this great article over at The Cannabist: “Would he revive the war on drugs? Five myths about Sen. Jeff Sessions.“

It should also be remembered that Donald Trump has previously expressed his support for legal marijuana, including saying that he supported medical marijuana “100 percent.” His new press secretary, Sean Spicer, implied during Sessions’ confirmation hearings that any member of Trump’s cabinet would implement the “Trump agenda:”
[youtube https://www.youtube.com/watch?v=h96dbjDJbew]

Stay tuned as Ohio moves forward with implementing its medical marijuana program over the coming months.