December 20, 2019
Cannabis Law in Columbus: Reconciling What's Legal and What's Not
by Tami Kamin Meyer
More than three years have passed since the Ohio Legislature legalized medical marijuana in the state, yet the process for making the product available to patients with prescriptions is far from glitch-free.
One reason is that as of December 1, 2019, only 43 dispensaries dot Ohio, although new ones do open on occasion. Initial plans call for 56 to be fully operational, but some locations are bogged down in the application process. Having that few limits the ability for some patients to travel to the outlets to purchase their medical cannabis because the nearest clinic may still be too far away. Ohio regulators divided the state into regions, allotting dispensaries to operate in each region largely based on population.
Fewer open dispensaries translates into less product being available to medical marijuana patients. When demand outpaces supply, prices increase. According to an April 1, 2019 article on Cleveland.com, an ounce of medical cannabis averaged $450 per ounce in Ohio, higher than the average street price for marijuana.
“We were supposed to have all cultivators and growers (ready for business) in September 2018, but problems arose. Litigation arose and some parts (of the law) were ruled unconstitutional,” said Walter (Chad) Blackham, as associate with MacMurray & Shuster, LLP.
Add to that mix the tensions raised by Ohio cannabis attorneys toiling in an area of law that is illegal on the Federal level, and lawyers tread lightly.
Another issue plaguing Ohio’s medical marijuana system, known as the Ohio Medical Marijuana Control Program, is that “lot of licensing issues” remain, said Blackham. “That is particularly true since so few licenses are available,” said Blackham.
He called the landscape of the licensing dispensaries in Ohio as “adversarial,” partly due to the number of entities competing for the limited number of available licenses.
Tensions raised by practicing cannabis law in Ohio
Practicing cannabis law in the Buckeye State is complicated because marijuana is still illegal under Federal law.
According to Blackham, the fact that cannabis is not legal under Federal laws “makes it difficult to substantiate claims, because studies indicating how recreational or medicinal marijuana (impacts the user’s health) do not exist in America.”
He readily admitted there is “a tension” for cannabis law attorneys in Ohio, and even in states where marijuana is legal, because of the Federal ban.
When Columbus cannabis law attorney Rachel Friedman Gold, an associate with Kegler Brown, first started practicing law in 2015, “Ohio attorneys were not permitted to counsel their clients on matters related to medical marijuana because of its federal illegality.” However, in September 2016, the Supreme Court of Ohio added Rule 1.2(d)(2) in response. That promulgation permits Ohio attorneys to counsel or assist clients regarding “conduct expressly permitted under the Ohio Medical Marijuana Control Program (OMMCP). Now that Ohio attorneys are permitted to counsel their clients on conduct allowed by the OMMCP, we advise clients on all actions permitted by state law as well as the applicability and/or intersection of state law with federal law,” said Friedman Gold.
Since then, some state legislatures, including Ohio’s, have enacted laws designed to reconcile the business needs of entities toiling in cannabis in some way, despite its illegality on the Federal level.
Moreover, in August 2019, Ohio Attorney General Dave Yost publicly discouraged county prosecutors across the state from pursuing marijuana cases.
But not every law enforcement official agrees with Yost’s stance.
For example, in response to Yost’s declaration, the prosecutor of Hamilton County issued a statement instructing law enforcement to investigate marijuana-related crimes as before but not to necessarily file charges immediately. Joe Deters’ reasoning? The statute of limitations for filing felony marijuana charges is six years, so filing charges immediately upon the conclusion of an investigation is not imperative.
Another loosening of the noose occurred when the 2018 Farm Bill decriminalized hemp production containing .3% or less of THC and CBD derived from the hemp, explained Blackham.
Meanwhile, the Rohrbacher-Farr amendment, first introduced to the House of Representatives in 2001, has served as another brick in the wall against people being prosecuted for violating state medical cannabis laws. The amendment, which was set to expire December 21, 2019, and whose future was unclear as of press time, prohibited the Justice Department from spending funds to prosecute defendants on medical marijuana charges. The measure had been consistently continued since its inception, but no action had been taken on it as of press time.
“The Federal Government is (currently) preoccupied with” other matters right now, said Blackman.