Politics
Ohio Senate Marijuana Bill Keeps Criminalization And Undermines Equity, Despite Expungements And Home Grow, Advocates Warn
Ohio’s voter-approved marijuana legalization law took effect on Thursday—but as lawmakers continue to push changes, advocates are calling attention to key provisions of a Senate-passed proposal that they say threatens to perpetuate criminalization and undermine social equity even while it walks back other significant alterations that were initially proposed such as a removal home cultivation rights.
At the same time, House lawmakers held a second hearing on Thursday about a separate measure to amend the legalization law.
After weeks of discussing revisions to the initiated statute, Republicans first unveiled legislation this week that would have done away with home grow, hiked marijuana taxes and re-criminalized possession of cannabis that wasn’t obtained from licensed retailers, which couldn’t open for at least one year. Some advocates were tentatively encouraged, therefore, when a significantly revised version with seeming improvements, including the restoration of home grow rights and addition of expungements provisions, was released and quickly advanced through the Senate with near-unanimous support on Wednesday.
But the brief discussion of the bill in committee prior to the full chamber vote—which also came amid House consideration of a separate GOP-led measure—did not adequately reflect the substantive changes that would be made to the law voters passed with 57 percent support, equity advocates say.
While senators reversed track on home cultivation (albeit, limiting households to six plants rather than 12) and also proposed opening up sales for adult consumers from existing dispensaries on an expedited timeline, criticism has surfaced over other issues—including the diversion of marijuana tax revenue funding for a social equity fund, restrictive rules for where cannabis could be consumed, THC limits and the removal of certain anti-discrimination protections.
All of this comes as key components of the legalization law have already taken effect, allowing adults 21 and older to possess up to 2.5 ounces of cannabis and grow up to six plants. Republican leaders, including Gov. Mike DeWine (R), aimed to enact changes to the program before the effective date on Thursday, but that failed to happen in time.
One aspect of the Senate-passed legislation that took people by surprise was the addition of expungements language that was not included in the voter-approved Issue 2, in large part due to a single-subject rule for ballot initiatives. But while one senator described the relief as “automatic” in committee on Wednesday, the bill only says that the attorney general shall create a process to reimburse people for costs associated with proactively petitioning the court for expungements of prior convictions involving possession of up to 2.5 ounces of cannabis.
Another contention with the revised measure concerns the complete removal of social equity funding that the initiative earmarked from marijuana tax revenue. As passed by voters, the law calls for 36 percent of those tax dollars to support equity and job placement. The Senate bill eliminates that fund altogether and instead distributes significant revenue toward law enforcement training.
Also, the legislation would prohibit sharing of marijuana between adults, mandate strict rules on transporting and storing cannabis, impose a three-day mandatory minimum jail sentence for passengers who consume cannabis in a car and set a cap on THC content in marijuana products that some view as incompatible with the legal availability of flower.
“This bill would be a slap in the face to Ohio voters who decidedly passed a voter initiative that, while imperfect, had social equity at its core,” Cat Packer, vice chair of Cannabis Regulators of Color Coalition (CRCC) and director of drug markets and legal regulation at the Drug Policy Alliance (DPA), told Marijuana Moment.
“Instead of advancing social equity, this bill would double down on the war on drugs approach—creating new penalties, gutting equity provisions and redirecting funds from social equity programs to law enforcement. literally drug war 2.0,” she said. “Ohio lawmakers are hoping that folks are distracted by conversations about home grow and the opportunity to purchase adult-use cannabis sooner while they gut social equity—a main tenet of the voter initiative. Ohioans deserve better.”
One of the issues that was raised during public testimony on Tuesday was the Senate bill’s initial proposal to prohibit the possession and use of cannabis that’s not obtained from state-licensed retailers. Advocates ideologically opposed the limitation on legalization but also pointed out that the way the legislation made it so retailers couldn’t start sales for at least another year. Further, there was no mandate for regulators to approve retailer licenses by a certain date, potentially extending the implementation of legalization indefinitely.
That was revised—but the way the bill is drafted would still only legalize possession of marijuana from retailers or home-cultivated products. People could not, for example, buy marijuana in another legal state and legally possess it in Ohio, a loophole activists worry will be used as a pretext by law enforcement to continue prosecuting people over the plant.
As revised, however, the measure would permit existing medical cannabis dispensaries to start serving adult-use consumers within 90 days of enactment, rather than nine months under Issue 2’s provisions.
Among the other consequential changes outlined in the amended Senate bill is the removal of anti-discrimination provisions concerning cannabis consumer rights in child custody and eligibility for organ transplants.
The marijuana excise tax would be set at 15 percent (up from 10 percent under the initiated statute), and local governments could levy an additional tax of up to three percent. The proposed 15 percent cultivator tax that was originally in the amendment package was removed.
The legislation calls for $15 million in marijuana tax revenue to go toward expungements. The remaining revenue would go to a Department of Public Safety law enforcement training (16 percent), an attorney general’s office law enforcement training fund (14 percent), drug law enforcement fund (five percent), poison control fund (two percent), substance misuse treatment (nine percent), suicide hotline services (nine percent), jail construction and renovation (28 percent), safe driver training (five percent) and more.
Also, the bill reduces the THC cap on adult-use marijuana extracts to 50 percent, rather than 90 percent under Issue 2. And it would further reduce the canopy limits on cultivation facilities, which stakeholders say could prevent adequate supply of the market and potentially drive up prices.
“Thousands of outraged voters convinced the Senate to walk back its proposed gutting of home cultivation and to add a couple of positive provisions to HB 86—limited expungement and earlier sales,” Karen O’Keefe, director of state policies at the Marijuana Policy Project (MPP), told Marijuana Moment. “But the Senate’s gut-and-replace of Issue 2 still ramps up criminalization, increases taxes, caps potency, makes the sale of flower impossible, eliminates social equity, and does away with protections for child custody, organ transplants, and benefits.”
Because the cannabis language was attached to a non-controversial House-passed measure on alcohol regulations, it only needs a concurrence vote in the House, which does not reconvene again until next week.
But it remains to be seen how the House will address the Senate proposal, especially given that it is actively considering a separate measure from Rep. Jamie Callender (R) that would revise the marijuana initiated statute in different ways. That legislation was taken up by the House Finance Committee during a second hearing on Thursday featuring advocates, business stakeholders, health officials and others.
While it would also keep home grow, the bill from Callender, who introduced another bipartisan bill to legalize marijuana this session, would add residency requirements for where plants can be cultivated to avoid “multiple individuals aggregating their home grow plants into a single location, in essence creating an unofficial cultivation facility,” the sponsor said in written testimony.
The legislation would further strictly prohibit sharing of marijuana between adults, including giving away home-grown cannabis. And it would add advertising and marketing restrictions that Callender said would align marijuana rules with those in place for alcohol and tobacco.
In addition to the 10 percent excise tax on marijuana sales, the House bill would impose a 10 percent tax on cultivators’ gross receipts. Revenue from the cultivator tax would go toward creating and renovating jails (36 percent), county sheriffs in areas with at least one cultivator (36 percent), law enforcement training (23 percent) and a crime victims assistance fund (five percent).
For the sales tax revenue, the 36 percent that Issue 2 allocated to social equity programs would instead go to counties for the purposes of funding equity grants and a job placement program, as well as “any other purpose that involves community engagement, economic development, or social programming.”
Another 36 percent would go to local governments with cannabis shops, 12.5 percent would support the 988 suicide and crisis lifeline, 10 percent would fund mental health treatment in county jails, three percent would cover administrative costs of regulating the cannabis market and 2.5 percent would go to a substance misuse treatment fund.
House Speaker Jason Stephens (R)—who has maintained that legislators should more thoughtfully address amendments to the initiated statute, even if that takes more time—hasn’t weighed in on the merits of Callender’s bill but said “we will have discussions on that.”
“There are a lot of different ideas that are going on about it and we’ll continue the discussion,” he said.
While some Democratic lawmakers have indicated that they may be amenable to certain revisions, such as putting certain cannabis tax revenue toward K-12 education, other supporters of the voter-passed legalization initiative are firmly against letting legislators undermine the will of the majority that approved it.
Ohio Rep. Juanita Brent (D) recently emphasized that people who’ve been criminalized over marijuana, as well as those with industry experience, should be involved in any efforts to amend the state’s voter-approved legalization law, arguing that it shouldn’t be left up to “anti-cannabis” legislators alone to revise the statute.
Meanwhile, Rep. Gary Click (R) filed legislation last week that would allow individual municipalities to locally ban the use and home cultivation of cannabis in their jurisdictions and also revise how state marijuana tax revenue would be distributed by, for example, reducing funds allocated to social equity and jobs programs and instead steering them toward law enforcement training.
Rep. Cindy Abrams (R) also introduced a bill last month that would revise the marijuana law by putting $40 million in cannabis tax dollars toward law enforcement training annually.
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The Ohio Department of Commerce was quick to publish an FAQ guide for residents to learn about the new law and timeline for implementation, though regulators repeatedly noted that the policies may be subject to change depending on how the legislature acts.
Prohibitionist organizations that campaigned against Issue 2, meanwhile, are set on a fundamental undermining of the newly approved law, with some describing plans to pressure the legislature to entirely repeal legalization before it’s even implemented.
For what it’s worth, a number of Ohio lawmakers said in September that they doubted the legislature would seek to repeal a voter-passed legalization law. The Senate president affirmed repeal wasn’t part of the agenda, at least not in the next year.
Voters were only able to decide on the issue after lawmakers declined to take the opportunity to pass their own reform as part of the ballot qualification process. They were given months to enact legalization that they could have molded to address their outstanding concerns, but the legislature ultimately deferred to voters by default.
As early voting kicked off in late October, the GOP-controlled Senate passed a resolution urging residents to reject measure.
Unlike the top state Republican lawmakers, one of the state’s GOP representatives in Congress—Rep. Dave Joyce, co-chair of the Congressional Cannabis Caucus, said in September that he would be voting in favor of the initiative in November. He encouraged “all Ohio voters to participate and make their voices heard on this important issue.”
Senate Banking Committee Chairman Sherrod Brown (D-OH) said in late October he voted in favor of the legalization ballot initiative, calling it a “hard decision” but one that was based on his belief that the reform would promote “safety” for consumers.
Meanwhile, Vivek Ramaswamy, a 2024 Republican presidential candidate, said he voted against a ballot initiative to legalize marijuana in Ohio because he’s concerned the federal government could “weaponize” criminalization against people who are engaged in state-legal cannabis activities under the “fake” pretense that they’re protected from federal prosecution.
Senate Majority Leader Chuck Schumer (D-NY), for his part, said recently that Ohio’s vote to legalize marijuana at the ballot is one of the latest examples of how Americans are rejecting “MAGA extremism,” and he added that he’s committed to continuing to work on a bipartisan basis “to keep moving on bipartisan cannabis legislation as soon as we can.”
Rep. Earl Blumenauer (D-OR), co-chair of the Congressional Cannabis Caucus, told Marijuana Moment that “the vote in Ohio was a great big exclamation point on the things we’ve been talking about.”
“We’ve been saying for years how this issue has crested, how it’s got broad momentum, how it is inclusive. It’s sort of like the success with the [Ohio abortion rights] issue—except this was more pronounced,” he said. “We got more votes than the abortion issue. We get more votes than anybody on the ballot.”
The White House has separately said that “nothing has changed” with President Joe Biden’s stance on marijuana, declining to say if he supports Ohio’s vote to legalize or whether he backs further reform of federal cannabis laws.
Meanwhile, as Ohio voters approved statewide legalization, activists also chalked up a series of little-noticed wins to decriminalize larger amounts of cannabis in three Ohio cities, according to preliminary county election results.
Photo courtesy of Philip Steffan.
