The THC. Testing. Taxes. Testimony. Timeline.

There was a time, back in days of yore, when Ohio patients felt lucky to have just one medical marijuana bill introduced every other year, one in each of the General Assembly’s two-year sessions. Five bills in 10 years. All went nowhere.

What a difference a decade makes. The last two-year session of the Ohio legislature ‒ 2021-2022 ‒ produced eight bills: four adult use, two to revise marijuana penalties, and two to improve the current program. And, the 2023-2024 session started off with the almost immediate introduction of Senate Bill 9, essentially a reintroduction of S.B. 261 from last year that was a revision of H.B.523, the medical marijuana law passed in 2016.

This Mary Jane’s Guide takes a deep dive into S.B. 9 and its testimony thus far.

WHAT is S.B. 9?

S.B. 9 stands for Senate Bill 9, with bills numbered from 1 starting at the beginning of the two-year legislative cycle (2023-2024). If not passed, bills expire at the of each cycle. Thus, S.B.9 is a continuation of the expired S.B. 261 from 2021-2022.

S.B. 261 was introduced into the Ohio Senate by Senator Stephen Huffman (R-5) on 11/21/21. Its short title read “amend the law related to medical marijuana,” that law being H.B. 523, Ohio’s medical marijuana law that passed in 2016. S.B. 261 passed the Senate on 12/15/21 by a vote of 26-5. It moved to the Ohio House on 12/22/21,  where it was referred to the Government Oversight Committee. Five hearings were held. A total of 31 persons – proponents (3), opponents (14), and interested parties (14) – submitted testimony. The last hearing happened on 11/17/22. No other action occurred for the remainder of the session.

S.B. 9 was introduced on 1/11/23, shortly after the commencement of the 2023-2024 cycle. Senator Stephen Huffman again served as the bill’s sponsor, along with the co-sponsorship of Senator Kurk Schuring, who also championed H.B. 523. The bill was referred to the Senate’s General Government Committee.  Four hearings have been held so far, with a total of 50 individuals offering testimony. In sum, they were 14 proponents, 9 interested parties, and 27 opponents.

WHO are S.B. 9’s “OPPONENTS” this TIME?

The four hearings so far for S.B. 9 reflect its predecessor S.B. 261: opponent testimony outnumbered proponent and interested party testimony combined. Of the 50 testimonies, over half voiced some form of opposition. In contrast, H.B. 523 in 2016 had 87 testimonies, with only eight opposing. Critical reading of these documents, however, reveals that oftentimes, the “opposition” really reads like constructive criticism.

While many so-called opponents comprised the “usual suspects” (Tuscarawas County officials, prosecuting attorneys, Christian groups, and drug free coalitions) a surprising number of speakers represented program licensees: cultivators, processors, and laboratories. They included Acreage Holdings, Standard Wellness, Rivera Creek, Pure Ohio Wellness, ACT Laboratories, and Noorah Labs.

Some of their concerns were well taken. For example, Bob Miller of ACT Laboratories stated, “As written, lines 2161 – 2176 of Senate Bill 9 requires testing laboratories to use a list of specific testing procedures and standards from two different organizations: Six from AOAC International, Six from ASTM International. … [they] do not ensure that these methods are the best available, that they are the most accurate, or that they are reliable on a long-term basis.” While framed as “opposition,” in reality, Mr. Miller’s thoughts are better labeled constructive criticism.

Matt Close with Ohio Medical Cannabis Industry Association said in his testimony, “…  patients aren’t purchasing all the medical marijuana existing operators are producing. Cultivator and processor vaults are full.” He went on to state in a WCPO article, “We [The Ohio Medical Cannabis Industry Association] strongly oppose Senate Bill 9 … It's about economics 101 — it's supply and demand.” Daniel Kessler of Riviera Creek reiterated, “the industry today is in a state of overproduction.” Other industry “opponents” agreed that oversupply was indeed a problem.

S.B. 9 HEARING – 3/14/23 – Mary Jane’s Testimony

The following text comprises Mary Jane’s testimony at the 3/14/23 Ohio Statehouse hearing on S.B. 9. A PDF of her words can be found here. Suggested changes to S.B. 9 are here. A video of the hearing is here. Her testimony lies at the very end of the video.

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Chairman Rulli, Vice Chairman Schuring, Ranking Member DeMora, and members of the General Government Committee, my name is Mary Jane Borden. Some of you may remember me from the Senate, House and Taskforce hearings held here in 2016 for then H.B. 523, now Ohio’s seven-year-old medical marijuana program. It feels like old times!

I am here today to offer proponent testimony for Senate Bill 9 introduced into the 135th General Assembly at the beginning of this year. This legislation would somewhat revise the aforementioned program.

I regularly publish articles for the Columbus Free Press under the name, “Mary Jane’s Guide.” The one I’ll submit tomorrow will be my 101^st and it will cover S.B. 9 in detail.

I work independently and uncompensated. I also hold an MBA, worked nine years for Adria Laboratories as a market analyst for anti-cancer chemotherapy agents, and have spent the last 20+ years advocating for sensible drug policies and the legalization of medical marijuana. I am also an active purchasing patient in Ohio’s Medical Marijuana Control Program (OMMCP). 

With this knowledge, I have constructed these linked tables: Mary Jane’s Guide to Ohio S.B. 9, Mary Jane’s Guide to S.B. 261. Mary Jane’s Guide to H.B. 523, MJ Guide to Changes for S.B.9, and Columbus Free Press - SB 9 - 3-14-23.  Other pertinent tables can be found in Mary Jane’s Library.

Let’s walk through some of S.B. 9’s more important suggested changes, in my opinion.

Research from OSU’s Drug Enforcement and Policy Center (DEPC) evaluated the OMMCP at three years and indicated that the program has two central problems: high prices and stagnant growth in purchasing patients.

Pricing is derived from market forces, supply, and demand. As indicated by Matt Close with Ohio Medical Cannabis Industry Association, “Cultivator and processor vaults are full.” If supply is this plentiful, then a lack of product is not driving high prices. The focus instead should be on demand and market forces.

The DEPC data (Figure 20) show that, other than price, the factors affecting demand include (in descending order) 1. employment, 2. dispensary numbers, 3. home delivery, 4. housing, and 5. medical conditions. S.B. 9 contains clauses dealing with #s 1, 3, and 5. It is lacking in those sticky employment and housing categories, which often have federal ties. 

Employment – workers comp, unemployment compensation, drug testing, ‘just cause’ firing for marijuana – is second to only price as the major patient concern. Thus, if the program wants more participants, one way to gain them is for the state to finally have a change of heart and change its tune on cannabis in the workforce. It must finally recognize that medical cannabis patients are hardworking, honest, responsible, and intelligent. They make honorable and trustworthy employees. To ease workforce restrictions, I’d suggest deleting Section 3796.28 (a product of H.B. 523) along with Section 4731.30 of S.B. 9.  

Like employment sanctions, housing and child care penalties are holdovers from the days of prohibition and the drug war. We’re finally getting past these unfortunate, misguided, and onerous policies from 30-50 years ago. And, we’re so learning much about cannabis therapeutic properties and our internal endocannabinoid system, common to all humans, that punishing people for utilizing this plant seems counter intuitive, wasteful, and cruel. Because these two clauses were covered in H.B.523, they don’t’ need to be eased, they need to be enforced. Common sense policies toward employment, housing and child care will inevitably raise patient numbers, as well as patient satisfaction.

Another way to improve patient counts is to broaden medical conditions, which S.B. 9 has already done. It’s nearly impossible to shoehorn thousands of patients into 27 medical conditions when the National Organization for Rare Disorders (NORD) lists over 7,000 rare diseases that affect more than 30 million Americans. This is why the “any condition” clause in S.B. 9 is important for increasing patient numbers. 

More stagnant than patient numbers are recommending physicians. I doubt their numbers have eclipsed 700 over the course of the program while in some states they exceed 1,000. Missing from this cohort are nurses, nurse practitioners, physician assistants, and hospital staff. More recommenders obviously translates into more patients.

So how do we reach these patients? Education. Education. Education. I have heard these three words many times, but they ring true here as well. Now that the bars against advertising are being lowered, dispensaries and other licensees can create campaigns to educate the public, not only on what the program does, but also on how to navigate this system. In theory, an educated patient can spread the word to another patient who will, in turn pass the info to other patients – that word of mouth thing.

I want to mention a couple of other issues in S.B.9.

This first is the THC level. I am delighted that you envision raising the maximum THC level from 70% to 90%. Many of THC’s most therapeutic effects are released in high concentrations. I point to the famed Rick Simpson Oil (RSO). I am a cancer patient. Preexisting conditions prevent me from taking the common chemotherapy drugs I studied so closely thirty years ago. I declined chemo and instead opted for daily doses of RSO. My cancer experience was almost three years ago. I’m still fine.

Also, cannabis scheduling in Ohio should be changed from Schedule II to Schedule III (or lower to IV or V). Marinol – 100% THC – is Schedule III; Epidiolex – CBD – is Schedule V. Affecting only Schedules I and II, the onerous IRS code Section 280E denies licensees the ability to take standard business deductions. Down-scheduling and decoupling the federal tax code from Ohio’s state tax code could save licensees tens of thousands of dollars. 

Finally, I wish to sincerely thank Senators Stephan Huffman and Kirk Schuring for having the wisdom, heart, and stamina to revise H.B. 523, not just once with S.B. 261, but now twice with S.B. 9. Like all human endeavors, the current program may fall short in some ways, but it does work, and it works well. I’m living proof having made regular purchases over the last four years. In fact, I just made one today. Given the cancer, I thank you for my medicine and for my life.

I am happy to answer any questions you may have.

#End

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One more point about the hearing. Approximately 33 minutes into it (see video) was the most impassioned testimony of the day. A former police officer described how his successful law enforcement career took a hard right turn into brain cancer. To ameliorate its debilitating symptoms, he took the courageous step of utilizing RSO/FECO as treatment. As so many have found, it became “huge part of [his] pain relief and longevity.” But the best part of the testimony was the reaction of committee Chairman Rulli. Well exceeding the allotted time, the patient and the chairman went back and forth on this topic – particularly the endocannabinoid system – to the point that Chairman Rulli indicated that he got it, he understood. For all patients, this level of understanding by public officials is essential to rendering change. In fact, this compelling give and take represented social change in action.

WHAT’S NEW in S.B.9.

·NEW. Medical conditions. These include: Arthritis; Migraines; Autism spectrum disorder; Spasticity or chronic muscle spasms; Hospice or terminal illness; and Opioid use disorder. They raise the condition number to 27 excluding the ‘blanket’ recommendation that a physician can give if he/she believes it is as debilitating to the patient as the named condition.

·NEW. “Foreign Patient Database.” No, this has nothing to do with other countries. Instead, it is a mechanism by which those from other states can register to make purchases at Ohio dispensaries. It addresses reciprocity. 

·NEW. Institutional Investors. Licensed medical marijuana businesses can seek funding from hedge funds, banks, insurance companies and other financial institutions. The “ownership interest” of 5% to 15% would be for investment purposes only.

·NEW. Oversight Commission. Remember the Advisory Committee from H.B. 523? This is its reinvention with teeth. The 13 lifetime appointees to the Committee help to administer the program.

·NEW. Named standards. Product testing must comply with 12 specified standards from the American Society for Testing and Materials (ASTM) and the Association of Official Agricultural Chemists (AOAC).

·Increases THC percentage for extracts to 90%. This is very good news to patients who utilized high concentrate THC to treat the symptoms of cancer, MS and other conditions. Let’s remember this is a medical program and that the prescription drug Marinol is 100% THC.

·Dissolves the Pharmacy Board’s Role. Pharmacy board functions in the current medical marijuana program will be transferred to the newly created Division of Marijuana Control (DMC) under the Ohio Department of Commerce. (Note: oversight in the RMLA initiated statute falls to the Division of Cannabis Control also under the Department of Commerce.)

·Allots dispensaries to Cultivators. Ninety days after effective date of S.B. 9, the division is commanded to issue two provisional dispensary licenses to each Level I cultivator and one such license to each Level II.

·Stand-alone processors. Licensed processors, who applied for but didn’t get a cultivation license, can apply for a provisional one under this new category. The cultivation facility must be located on the processor’s existing site.

·Testing fails. If a product test falls outside of typical results or otherwise fails, retesting may be done by a laboratory other than the original one. Plant material and products that fall outside of testing limits for contaminants may be refined.

·Dispensary ratios.  The number of retail dispensary licenses permitted at one time is based on achieving a ratio of at least one dispensary per one thousand registered patients up to the first 300,000 registered patients. Thereafter, additional dispensaries can be added on an as-needed basis. Dispensaries license numbers are to be evaluated at least once every two years. New dispensaries must be more than one mile from existing dispensaries.

·Dispensary medical director. Medical director of a licensed dispensary (if there is one) may recommend medical marijuana as a treatment.

·Physician recommendations. Now submitted to the Division instead of the Pharmacy Board.

·Equity Study. The department of administrative services is instructed to conduct an equity study of the medical cannabis industry and the medical cannabis market to determine whether there is a compelling interest to implement remedial measures, which may include applying the requirements of the minority business enterprise program and assisting minorities and women in the medical cannabis industry.

WHAT REMAINS the SAME:

·Physicians still recommend.

·Smoking still banned.

·No home grow.

·Patient purchases still reported to OARRS (state drug database).

·Medical marijuana still designated Schedule II.

·Cannabusinesses still reside 500 feet from schools, churches, library, playgrounds and parks.

·Still has special provisions for caregivers, veterans, and indigent programs.

·Possession maximum still ‘Ninety day supply,’ but clarified as nine ounces.

·Criminal background checks still conducted on employees.

·Patients still subjected to discrimination by public and private payors who remain exempt from covering cannabis-related healthcare expenses, including Medicaid, workers compensation, self-insured employer programs, and health plan insurers.      

IS S.B. 9 NECESSARY?

Yes, for several reasons:

·Establishes division of marijuana control (DMC) in the department of commerce is a positive move. Five different state regulators governing one program became confusing, with cultivators and processors overseen by one agency, while their patient customers fall under another. (see p. 4 of this H.B. 523 PDF) With one overarching authority, the proverbial “right and left hands” should better communicate with one another, saving time, energy and money.

·Moves pharmacy board functions to the division. Placing dispensaries – formerly managed by the pharmacy board – under the same umbrella as the cultivators, processors and testing laboratories will streamline the program. The only concern would be cannabis’ “essential” status during the COVID-19 pandemic – thanks to the board of pharmacy, dispensaries remained open. 

·Creates oversight commission. This reinvention of the Advisory Committee from H.B. 523 will help make the program more transparent and accountable to patients. Many agencies operate under commission boards. However, the number of commission members could be reduced, and the lifetime appointments eliminated.

·Permits retesting of products that failed initial testing. Products falling outside testing limits may be refined. Reduces product waste and encourages ‘recycling.’

·Permits dispensaries to advertise. The inability to advertise without prior permission represents an ‘Achilles Heel’ of Ohio’s medical cannabis industry. In some cases, not even freeway signs were permitted. Advertising will help patients navigate products and find dispensaries.

·Commissions equity study. While a far cry from actionable DE&I (Diversity, Equity and Inclusion) programs, this study should inform the OMMCP that equity improvements are needed.

·Maximizes 90% THC percentage. Remembering that the OMMCP is a medical program, high THC content is therapeutically necessary. The recommended THC percentage  for “Rick Simpson Oil” (RSO) is 90%. THC rich oils have been successfully used to control cancer and other medical conditions. Marinol, a Schedule III FDA-approved synthetic drug, is 100% THC. S.B.9 merely permits a natural equivalent.

·Adds needed qualifying conditions. Physicians can recommend on the basis of other conditions at their discretion. More than 1,200 conditions reside in the National Organization for Rare Diseases database. Because of their rarity, none would likely become qualifying conditions for the OMMCP. These patients and their doctors should be permitted to participate in the program in the same way as those with more common illnesses.

THE FUTURE 

Future hearings, as well as committee deliberation and floor votes, will determine whether S.B. 9 will make it to Governor DeWine’s desk. Although he has historically opposed cannabis legalization, he has left the door open for consideration of “a proposal in the Ohio General Assembly that would loosen the rules for medical marijuana.” If S.B.9 is that proposal, there’s a good chance it will be enacted. The same can’t be said for adult use, which DeWine and the General Assembly generally oppose.

Adult use. What should not be forgotten from the S.B. 9 discussion is the pending initiated statute to legalize adult use marijuana in Ohio. Called Regulate Marijuana Like Alcohol (RMLA), this proposal would eliminate the need for medical conditions, THC caps, physician recommendations, advertising restrictions, and other market factors that inhibit the growth of Ohio’s medical program. Per a legal agreement reached in May 2022, the first set of 136,729 valid signatures collected for the statute count. As required, Secretary of State LaRose then resubmitted the measure to the Ohio General Assembly on 1/5/23. The legislature has four months to pass it. If it fails, the campaign can recommence its drive on 5/5/23 to collect the remaining 132,877 signatures, with a looming 7/5/23 deadline for placement on the ballot in the fall 2023 general election. There is no evidence on the Assembly’s website that enabling legislation for the statute has been introduced. An overview of this proposed law can be found here.

WANT to MOTIVATE PASSAGE of S.B. 9?

·Testify. Please see this excellent analysis concerning how to testify for S.B.9 and other legislation. Note that you can also submit your testimony online.

·Vote out of committee. If you like S.B.9 as is, you can ask for it to be voted out of the General Government Committee and considered by the full Senate. Contact committee chair Michael A. Rulli (R-33) at 614-466-8282 or https://ohiosenate.gov/members/michael-a-rulli/contact

·Vote out of chamber. If voted out of committee to the Senate floor for a vote, the bill needs to be placed on the legislative docket. Contact Senate President Matt Huffman (R-12) at 614-466-7584 or https://ohiosenate.gov/members/matt-huffman/contact. Remember, once affirmatively voted out of the Senate, the bill would be forwarded to the Ohio House for its approval before going to Governor DeWine for his signature.   

WANT MORE INFO?

Check out Mary Jane’s Library. Specifically, “Mary Jane’s Guide to S.B. 9,” whose format is a similar and comparable to “Mary Jane’s Guide to S.B.261” published in 2022 and “Mary Jane’s Guide to H.B. 523” published in 2016. Here is current text for S.B. 9, an LSC analysis of the bill’s provisions and Fiscal Notes concerning its costs. This article in PDF format can be found here.

ABOUT MARY JANE BORDEN

Mary Jane Borden is a best-selling author, skilled graphic artist, and award winning cannabis activist from Westerville, Ohio. During her 40-year career in drug policy, she co-founded seven cannabis-oriented groups, co-authored four proposed constitutional amendments, lobbied for six medical marijuana bills, penned 100+ Columbus Free Press articles and has given hundreds of media and podcast interviews. She is a contributor to both Courage in Cannabis editions. Her artwork can be viewed at CannabinArt.com and she can be reached at maryjaneborden@ gmail.com. Her goal is, “To make Ohioans the smartest, best informed and most effective advocates for the cannabis plant.”