Ohioans woke up Thursday in a land of recreational marijuana limbo, in which adults can legally grow and possess cannabis at home, but cannot legally buy it.
That combination of factors related to a citizen-initiated statue voters approved in November “is a recipe for disaster,” Republican Gov. Mike DeWine said Wednesday night. He urged passage of a compromise bill setting parameters for carrying out Issue 2. The 11th-hour deal managed to make it through the Ohio Senate on the eve of the new law's effective date, but not through the Ohio House, which — insistent there's no rush— opted to adjourn.
DeWine predicted that black market sales would flourish in the state, making fentanyl- or pesticide-laced marijuana products more accessible and endangering Ohioans, including children who could be subjected to second-hand pot smoke at this holiday season’s festivities.
One regulator quipped that growing marijuana without being able to legally buy it must require “immaculate conception.”
Republican state Rep. Jamie Callender, sponsor of separate House implementation bill, told the House Finance Committee on Wednesday that DeWine and GOP Senate President Matt Huffman were wrong and that “there is no drop-dead date” for putting Ohio's legal sales scheme in place. He said home grow and possession could still proceed without incident.
Callender said he wants "to make sure we're thoughtful, that we've had adequate time to look at it and deal with the things that don't go into effect immediately that we can work on,” and that voters' wishes are respected.
Republican House Speaker Jason Stephens did not speak to reporters Wednesday. But the chamber's No. 3 Republican, state Rep. Bill Seitz, defended the House's decision to adjourn without acting on the 160-page compromise, which was tacked onto an existing House bill that returns to the lower chamber next week.
“We’re not going to pass, sight unseen, such a monstrous proposition in 48 hours. That’s nuts,” Seitz said. Lawmakers need adequate time to work through the complexities of setting up Ohio's adult-use cannabis sales, taxation and regulatory structure, he said.
State lawmakers, in fact, had four months last year to act. As a citizen-initiated statute, Issue 2 had to be submitted to them before going to the statewide ballot. After the GOP-controlled Legislature chose to do nothing, the measure was placed on the Nov. 7 ballot and passed with 57% of the vote.
As passed, it allows adults 21 and over to buy and possess up to 2.5 ounces of cannabis and to grow up to six plants per individual or 12 plants per household at home. It gave the state nine months to set up a system for legal marijuana purchases, subject to a 10% tax, with revenues to be divvied up between administrative costs, addiction treatment, municipalities with dispensaries and social equity and jobs programs supporting the cannabis industry itself.
With just days to go before the law took effect, Senate Republicans proposed a sweeping rewrite of what voters approved, angering the issue's backers and alarming both parties in the House. That first bill would have outlawed home grow entirely, cut the possession limit to 1 ounce, raised the tax rate on pot purchases to 15%, eliminated tax benefits for social equity programs that support the marijuana industry itself and directed most of the money to a general state government fund.
Under the compromise negotiated with DeWine and approved 28-2 by the Senate Wednesday, the number of marijuana plants allowed per household was cut to six, the higher 15% tax rate on purchases was retained and THC levels for cannabis extracts were reduced from the 90% allowed under Issue 2 to 50%. The deal restored the possession limit of 2.5 ounces, however, retained the 35% THC level for plants and nixed allowing Ohio state government to control most of the marijuana tax revenue.
In a move that garnered Democratic support for the measure, the compromise bill adds a provision not included in Issue 2 that calls for expunging the criminal record of anyone convicted of marijuana possession up to 2.5 ounces. It also adds protections for children, such as requiring child-safe packaging on legal marijuana products and banning ads targeting children — a priority for the governor.
Ohio has never before made such significant changes to an initiated statute, according to Steven Steinglass, dean emeritus of the Cleveland State University College of Law and a leading expert on Ohio’s constitution.
“Understand, this has never happened in Ohio, because the voters have only approved three initiated statutes in 111 years, and none of the three have been amended, repealed or fiddled with by the General Assembly," he said.
If legislators veer too far from the statute voters approved, the Coalition to Regulate Marijuana Like Alcohol, the campaign behind Issue 2, or some other group can always pursue a referendum.
“Because the proponents have some important constitutionally-authorized tools they might use, that should give the legislators an incentive to sit down with the proponents to perhaps reach a compromise over changes the legislators feel are necessary and that proponents feel are not violative of their legislative intent,” Steinglass said.
Huffman said the compromise legislation is respectful of voters, while addressing important concerns.
“I’m opposed to (legalization), but it’s the law,” the Senate president said. “We don’t want illegal sales — the black market if you will — to get a foothold.”
Meanwhile, there are plenty of aspects of the new Ohio law that can be immediately enforced, said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association.
“As of Thursday, it’s going to be very difficult to find probable cause and to prosecute people who are carrying around less than 2.5 ounces of marijuana, but prosecutors and law enforcement are still going to be on the lookout," Tobin said. “People smoking in cars are still breaking the law, people carrying around more than 2.5 ounces are still breaking the law, people engaging in private sales are still breaking the law, people driving under the influence are still breaking the law.”
