Ohio Joins the Medical Marijuana Legalization Train

Kegler Brown Government Affairs Update

Ohio Gov. John Kasich signed HB523, which continues the nationwide trend of States legalizing medical marijuana.

When Will the Law Become Operable?

On September 8, 2016, the new law becomes effective – meaning the State will officially begin establishing the Medical Marijuana Control Program, which is the infrastructure to regulate the industry. Patients with a “qualifying medical condition” (listed below) won’t actually gain access from within the State until the Program is established, no more than 2 years after the effective date.

How Will the Medical Marijuana Program Work?

HB523 requires the Department of Commerce and Pharmacy Board to establish and jointly administer the Program primarily through rules that they must write and adopt within a year of the effective date. The Department will license cultivators, processors and testing laboratories through rules adopted within eight months of the effective date, and the Board will license retail dispensaries and register patients and caregivers.

Both the Department and Pharmacy Board will be advised by the newly-formed Medical Marijuana Advisory Committee, consisting of gubernatorial and legislative appointees.

The bill authorizes the State Medical Board to issue certificates to physicians seeking to recommend medical marijuana treatment. The bill prohibits smoking or combustion of medical marijuana, but does allow marijuana oils, tinctures, plant material, edibles, patches, vaporization and any other form approved by the Board of Pharmacy.

The Qualified Medical Conditions that can be treated by marijuana under the bill:

  • AIDS
  • Alzheimer's disease
  • Amyotrophic lateral sclerosis (ALS) 
  • Cancer
  • Chronic traumatic encephalopathy 
  • Crohn's disease
  • Epilepsy or another seizure disorder
  • Fibromyalgia
  • Glaucoma
  • Hepatitis C
  • Inflammatory bowel disease (IBD) 
  • Multiple sclerosis (MS)
  • Pain that is either chronic and severe or intractable
  • Parkinson's disease
  • Positive status for HIV
  • Post-traumatic stress disorder 
  • Sickle cell anemia
  • Spinal cord disease or injury
  • Tourette's syndrome
  • Traumatic brain injury
  • Ulcerative colitis

The State Medical Board may add to this list.

Other Interesting Notes about the New Law

The bill prohibits home growing of medical marijuana even for personal, family or household use. The bill creates an affirmative defense for patients obtaining medical marijuana from other sources before it is available from regulated Ohio sources, but it must be in a form and consumed only as allowed by HB523.

Employers may still establish and enforce drug-free workplaces that prohibit and test for any drug that is illegal under Federal law. Furthermore, employers need not accommodate an employee or permit an employee’s use, possession or distribution of medical marijuana, and discharge due to use may be considered just cause under the Unemployment Compensation Law if the use violated an employer’s drug-free workplace policy or other formal program or policy.

The law provides an exemption to a financial institution that provides financial services to a compliant licensee from any Ohio criminal law under specified conditions, and authorizes the Department of Commerce Director to adopt rules to establish a closed-loop payment processing system to be used by registered patients and caregivers and certain licensees.

The Department and Pharmacy Board must, if possible, each issue at least 15% of licenses to entities that are owned by members of a racial minority group.

Municipalities or townships may prohibit or limit the number of retail dispensaries by ordinance or resolution. Similarly, zoning ordinances may restrict locations as under current law. Licensees cannot operate near (within 500 feet) a school, church, daycare, library or park.

There are several exemptions for possession created for certain institutions of higher learning, medical centers, private research and development organizations and related organizations.

Since the manufacture, sale and distribution of marijuana remains a Federal offense, look for the Ohio Supreme Court before the effective date to issue some guidance to Ohio lawyers on advising clients participating in the industry because professional conduct rules generally prohibit lawyers from helping a client violate a law.