What it is. What it does. What happened to it. Is there hope for it?

Cannabis in Ohio has suddenly gone quiet. For a time, the Statehouse buzzed with action. The House had H.B. 60 (medical marijuana for autism), H.B. 356 (lower marijuana penalties from felonies to misdemeanors) and H.B. 210, 382, 498, and 628 (all to permit adult use cannabis). Late last year, the upper chamber fast tracked its approval of Ohio Senate Bill 261 to improve the current medical marijuana program, sending the bill to the House where four hearings were held in the Spring. Nothing since. What happened? The game is called stall ball.   

Where did S.B. 261 originate?

Go back, back in time to November 2015 when Ohio voters soundly defeated the ill-fated ballot measure “Responsible Ohio.” Unwilling to accept defeat, “RO” investors urged their legislative cohorts to fast track a bill through the 2015-2016 Ohio General Assembly. At the same time, the Marijuana Policy Project was targeting an initiative for placement on the fall 2016 presidential ballot. Nothing motivates lawmakers more than the threat of a successful citizen-led initiative. This is when Ohio Senator Stephen Huffman, carrying the moniker of Ohio Representative Stephen Huffman, introduced the first cannabis bill enacted into Ohio law, H.B. 523. It established the Ohio Medical Marijuana Control Program (OMMCP). The measure segued through a series of town hall meetings, task force hearings and legislative committees to ultimately go from introduction to the governor’s desk in one short month. The “authorizes the use of marijuana for medical purposes” act went into effect on September 8, 2016.

What does S.B. 261 do?

It makes these changes to the OMMCP:

• Establishes the division of marijuana control (DMC) in the department of commerce to license medical marijuana cultivators, processors, and retail dispensaries; license laboratories that test medical marijuana; register patients and caregivers; and administer the OMMCP.
• Transfers pharmacy board functions to the division within sixty days. The board oversaw regulation of retail dispensaries. (Interestingly, the website of the department of commerce appears ready to accommodate these new functions).
• Expands cultivation sites: Level I and II cultivations expanded respectively from 25,000 sq ft and 3,000 sq ft to 50,000 sq ft and 6,000 sq ft. Can be further expanded to 75,000 sq ft and 20,000 sq ft.
• Creates a new cultivator license for stand-alone processors.
• Permits retesting of products that failed initial testing. Products falling outside testing limits may be refined.
• Permits dispensary medical director to recommend medical marijuana.
• Permits dispensaries to advertise on social media.
• Commissions equity study by the board of pharmacy in collaboration with the commerce department to help minorities and women enter the industry.
• Maximizes 90% THC percentage for extracts.
• Adds Inhalers, oral strips, oral pouches and sprays as acceptable forms.
• Adds Opioid use disorder and autism spectrum disorder to qualifying conditions list. Physicians can recommend on the basis of other conditions at their discretion.

What does S.B. 261 NOT do?

Provisions of current OMMCP that would remain the same:

• Physicians must recommend.
• Does not permit smoking.
• Does not permit home grow.
• Does not protect patients from employment sanctions – inability to collect workers compensation or unemployment insurance benefits (ORC 3796.28, ORC 4123.54).
• Patient purchases still reported to OARRS (state drug database).
• Medical marijuana designated Schedule II.
• Criminal background checks conducted on employees.
• Cannabusinesses must reside 500 feet from schools, churches, library, playgrounds and parks.
• Includes caregiver, veterans, and indigent programs.
• Possession maximum ‘Ninety day supply.’
• Establishes “in good faith” a reciprocity agreement with other states.

Where does S.B. 261 currently stand?

This legislation was introduced into the Ohio Senate by Senator Stephen Huffman (R-5) on 11/21/21. Its short title reads “amend the law related to medical marijuana,” that law being H.B. 523. The proposed legislation has six cosponsors. Following written and/or in person testimony by 28 individuals – proponents (13), opponents (3), and interested parties (12) – 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. Four hearings have been held there so far. A total of 29 persons – proponents (2), opponents (13), and interested parties (14) – submitted written testimony either in person or electronically. The last hearing happened on 4/27/22. No action has occurred since.

Why so many opponents? 

What is remarkable about S.B. 261 is the amount of opposition testimony. Of the 57 testimonies, roughly one third voiced opposition. In fact, at the last hearing on 4/27/22, only one of the seven speakers favored the bill. H.B. 523 had 87 testimonies, with only eight in opposition.

Who are these opponents? They hailed from Tuscarawas County, served as prosecuting attorneys, and comprised Christian groups, drug free coalitions, police and physicians. Analysis of their testimony found it focused on these distinct points: children (particularly adolescents), advertising, declining IQ, high potency THC (90%), mainstream medical approval (FDA), move to Department of Commerce, and the cannabis industry in general.

It should be noted that many “drug free” groups have annual budgets of at least $125,000, the amount of their federal grants. Each must match that money with local funds. These coalitions are mandated by law (21 U.S.C. § 1703) to oppose the legalization of Schedule I drugs, marijuana’s classification at the federal level, and 90% of them target it. Groups like the Prevention Action Alliance do not consider cannabis to be medicine and lobby against both voter and legislative initiatives. These same groups testified against H.B. 523 in 2016 and now want to nix the program in 2022. 

Interestingly, many “drug free” groups receive funding from Big Pharma, which opposes legalization. “Why” was recently answered in a peer-reviewed study whose conclusion read, a “single legalization event [can] reduce drugmaker annual sales by $3B on average.” S.B. 261 must be costly to them.

Is S.B. 261 needed?

Yes, for several reasons:

• Establishes the division of marijuana control (DMC) in the department of commerce. Five different state regulators governing one program becomes confusing, with cultivators and processors overseen by one agency, while their patient customers fall under another. (see p. 4 of this HB 523 PDF) With one overarching authority, the proverbial “right and left hands” should better communicate with one another, saving time, energy and money.
• Transfers 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. 
• Expands cultivation sites. S.B. 261 strives for the ratio of 1,000 registered patients per retail dispensary and forecasts 300,000 registered patients. In September 2021, the pharmacy board added 73 new dispensaries. These dynamics necessitate new growing sites to meet increased demand. According to the law of supply and demand, additional supply should translate into lower prices for patients. High prices are a principal program complaint.   
• Creates a new cultivator license for stand-alone processors. Allows processors to become vertically integrated like their counterpart cultivators and dispensaries.
• 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 allowed. 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.261 merely permits a natural equivalent.
• Adds opioid use disorder and autism spectrum disorder to qualifying conditions list. Physicians can recommend on the basis of other conditions at their discretion. Numerous attempts have been made – even a standalone bill (H.B. 60) – to add those two conditions to no avail. Research supports both. More than 1,200 conditions reside in the NORD 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.

What does the future hold for S.B. 261? 

Even though S.B. 261 may appear dormant, it still has life.

• The election season. Lawmakers’ aversion to citizen-led initiatives extends to just about every other issue in the weeks leading up to a general election. The ostrich puts his head in the sand. “I see nothing!” So, between now and November 8th, expect cannabis discussions in Ohio to remain pin-drop quiet.
• The Lame Duck Session. This is the timeframe from November 9th through the end of the year, really the week before Christmas. The election may well bring new legislators into the 2023 General Assembly, who may or may not agree with the current policy makers. During “Lame duck,” lawmakers can vote on controversial topics without worrying about running for office. The House may well take up S.B. 261 during this session.
• Stall ball and the hold outs. Remember, S.B. 261 has already been passed by the Ohio Senate. The “stall ball” is being practiced in the House. Aside from the pending election, veteran canna-lobbyist Tim Johnson offered another angle. He suggests that just a handful of representatives are hold outs with concerns about the bill. “One doesn’t like the high THC cap. Another wants more DE&I. The business structure is problematic for some, while others ask, what about the children?” If these differences could be resolved in committee, Johnson believes S.B. 261 will pass on the House floor.
• As is?  The S.B. 261 text analyzed for this article passed the Senate. The House may have different ideas. It could “adopt amendments and report [move it to the full House for a vote] the bill as an amended bill; redraft the bill or adopt numerous or lengthy amendments and report it as a substitute bill; combine two or more bills into one amended or substitute bill; indefinitely postpone the bill, thereby defeating it; or take no action at all.” If the Senate version and House version are too far apart, the bill goes to a conference committee that can craft amendments to resolve the differences. Both chambers must approve the amended or “substitute” bill.
• Governor’s stamp of approval. With possible passage in the House, the question then becomes, would Governor DeWine sign the bill? DeWine has historically opposed cannabis legalization. He emphatically stated his opposition to adult use, but left the door open for consideration of “a proposal in the Ohio General Assembly that would loosen the rules for medical marijuana.” The governor could veto S.B. 261, or refuse to sign and let it become law in ten days. If vetoed, three fifths vote of the House and Senate can override the governor. If this legislation would be reintroduced, become a rider to another bill, or somehow continue into 2023, a new governor more supportive of cannabis may well sign enthusiastically.

Want to motivate passage of S.B. 261?

Since the Senate has already passed the bill, the focus should be on the House.

• Ask for the bill to be voted out of the Government Oversight Committee and considered by the full House. Contact committee chair Shane Wilken (R-91) 614-466-3506 or Rep91@ohiohouse.gov.
• If voted out of committee to the House floor for a vote, the bill needs to be placed on the legislative docket. Contact Speaker of the House Robert Cupp (R-4) 614-466-9624 or Rep4@ohiohouse.gov.

Want more info?

Check out Mary Jane’s Library. Specifically, “Mary Jane’s Guide to S.B. 261,” whose format is a similar and comparable to “Mary Jane’s Guide to H.B. 523” published in 2016. Also, “Mary Jane’s Guide: Opposition Research Concerning Cannabis in Ohio” and “S.B. 261 Opposition Research – 2022.” Here is the text for S.B. 261 as it existed when it passed the Senate, an LSC analysis of the bill’s provisions and Fiscal Notes concerning its costs. This article in PDF format can be found here.

Editor’s Note:

In preparation for this article, Ohio Senator Stephen Huffman’s office, sponsor of S.B. 261, was contacted by email and phone. No response has yet been received. 

-------------------------------

About Mary Jane Borden

Mary Jane Borden is a best-selling author, talented 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 97 Columbus Free Press articles and has given hundreds of media and podcast interviews. 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.”