Ohio Releases Dispensary Applications as the Federal Government Continues To Send Conflicting Signals on Legal Marijuana

The Ohio Board of Pharmacy releases model dispensary applications

Today the Ohio Board of Pharmacy released, through the Ohio Medical Marijuana Control Program Website, the application materials for Ohio dispensaries. The Board will accept applications electronically beginning on November 3 at 8:00am and ending on November 17 at 2:00pm.

Similar to what the Department of Commerce did for medical marijuana cultivator applicants, the Board will hold two Q&A periods where it will accept questions from the public. These Q&A periods will be from September 19 – October 5 and October 16 – October 20. The Board will host an informational webinar on October 3.

Ohio will license 60 dispensaries, allocated among several geographic districts. There is a $5,000 fee per dispensary application.

Application materials for medical marijuana processors have not been released yet by the Department of Commerce, though it is anticipated that processor applications will be accepted after cultivator provisional licenses are awarded in November.

Conflicting messages from the federal government results in continued uncertainty in the legal marijuana industry.

Tom Angell reports that Deputy Attorney General Rod Rosenstein discussed the 2013 Cole Memo during an appearance at the Heritage Foundation recently. According to Angell, Rosenstein said, “[w]e are reviewing that policy. We haven’t changed it, but we are reviewing it. We’re looking at the states that have legalized or decriminalized marijuana, trying to evaluate what the impact is[.]” He continued, “[a]nd I think there is some pretty significant evidence that marijuana turns out to be more harmful than a lot of people anticipated, and it’s more difficult to regulate than I think was contemplated ideally by some of those states[.]”

Rosenstein also reiterated that while the Cole Memo may be interpreted to mean that the risk of prosecution is unlikely, it does not mean that an individual’s conduct is legal under federal law, even if that individual is acting in compliance with a conflicting state law.

While Rosenstein is right that the Cole Memo merely guides federal law enforcement in making decisions whether or not to charge marijuana businesses, Rosenstein apparently did not discuss the Rohrabacher-Farr amendment that has been renewed in every appropriation bill since 2014 – and was recently renewed until this December.

Under Rohrabacher-Farr, the Department of Justice is prohibited from using funds to interfere in the implementation of state medical marijuana programs. The Ninth Circuit has held that this means the Department cannot prosecute individuals acting in strict compliance with state law. United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). And at least one Michigan federal court has allowed a hearing to determine whether a federal defendant can take advantage of Rohrabacher-Farr’s protections. United States v. Samp, E.D. Mich. No. 16-cr-20263 (March 29, 2017). Attorney General Jeff Sessions objected to the renewal of Rohrabacher-Farr earlier this year.

The conflicting signals by various federal officeholders could be the new normal for marijuana policy. Over the last year, for example, we have seen the following:

• Jeff Sessions said that the 2013 Cole Memo was “valid,” and recognized that the Department of Justice may not have the resources to start prosecuting state-legal operators, while at the same time maintaining his public drug war rhetoric;
• Sean Spicer predicted “greater enforcement” of federal marijuana laws early in the Trump administration;
• But then the Department of Justice task force that reviewed federal marijuana policy recommended maintaining the status quo, as opposed to implementing any such crackdown;
• Legislators are increasingly comfortable supporting the relaxation of federal marijuana laws – including Senator Orrin Hatch (R-UT) who gave a floor speech about the potential of medical marijuana to treat “a wide-range of diseases and disorders.” As Tom Angell reports, Senators Brian Schatz (D-HI), Chris Coons (D-DE), Cory Gardner (R-CO) and Thom Tillis (R-NC) are cosponsoring legislation with Hatch to ease federal restrictions on marijuana research.

For more information on the application process for Ohio medical marijuana dispensaries and processors, please contact Frantz Ward attorney Tom Haren or another member of the firm’s Marijuana Law & Policy group.