Changes to New Marijuana Law Being Debated in Ohio Legislature

by Gregory Moore

The full impact of Issue #2, passed last year by Ohio voters legalizing adult use of marijuana, has yet to be fully implemented. Ohio lawmakers continue to grapple with a series of modifications to the voter-approved statute. The Initiative to Regulate Marijuana Like Alcohol, commonly known as Issue #2, was passed on Nov. 7, 2023, with the overwhelming support of 57% of voters statewide. Since their return to session in early January, the Ohio Legislature has been debating making modifications to the new law along with the required regulatory guidelines for cannabis sales.

Many parts of the new law have already taken effect as of Dec. 7, 2023, and allow adult users to possess, grow, and cultivate cannabis for personal use. Adults over 21 years old in Ohio can now legally possess up to 2.5 ounces of marijuana and 15 grams of extracts, as well as cultivate up to 12 marijuana plants per household for individual use at home. 

When the new law took effect there were no designated dispensaries where Ohioans could legally purchase marijuana products for recreational use. Issue #2 gives the state an additional nine months to establish guidelines and regulations for cannabis industry dispensaries across the state. Governor Mike DeWine and Republican leaders are looking to quickly pass new provisions that would allow current medical marijuana dispensaries to become the initial sites for cannabis sales to discourage purchases in the still active illegal drug market.

Other more controversial areas where the Republican legislative leaders had sought changes include decreases in the level of potency of legal marijuana products sold under the new law. Ohio Senate President Matt Huffman, (R-Lima) has expressed interest in lowering the THC content potency caps which were set in Issue #2 at 35% for marijuana plants and 90% for extracts. Huffman initially sought increases in the sales tax rate from 10% to 15%, an over 50% increase in the voter-approved tax rate.

In the Ohio House, Speaker Jason Stephens, (R-Kitts Hill) has advocated for anticipated state cannabis sales tax revenues being redirected away from social equity funds specifically called for in Issue #2. Instead, Republican leaders want to redirect social equity funds to general state funding with earmarks for law enforcement and jail construction.

The Coalition to Regulate Marijuana Like Alcohol which led the Yes on Issue #2 Campaign has strongly opposed the proposed changes. Issue #2 Spokesperson Mark Herron stated that the lower potency and higher prices of state-regulated cannabis products being proposed by legislators will only “entrench the illicit market and force Ohioans to continue to buy products in Michigan. This is not what the voters wanted.” 

There are several important restrictions on the use of marijuana in public places under the new laws including:

• Smoking or vaping marijuana while operating a car, truck, boat, or any passenger vehicle remains illegal under the state’s current Operating a Vehicle while Intoxicated (OVI) laws.
  • Smoking marijuana in “public areas” is illegal and considered a misdemeanor, under the same provision as smoking a cigarette.
  • Smoking marijuana in rented apartments and multi-unit housing would be prohibited under the rules of Ohio’s current indoor tobacco smoking regulations.
  • Landlords and property owners are granted the right to decide for themselves whether to accommodate marijuana use in outdoor public spaces adjacent to their property.
  • Public and private employers can still set their own policies for the use of marijuana by their employees.
  • Individual industry rules around drug testing and on-the-job use will remain in effect and will not be impacted by the new law.
  • Employees who use marijuana on the job can still face disciplinary action and can be denied employment under the newly passed law.

Many Ohio business industry leaders opposed the Issue #2 ballot measures, including the Ohio Chamber of Commerce, the Ohio Business Roundtable, and the Ohio Manufacturer Association. Since its passage, they have expressed concerns over the impact of a workforce with an increased number of employees using marijuana. Concerns included the potential for decreased work productivity, increased worker absenteeism, higher turnovers, and lost revenues from increasing enforcement and related legal costs. The new law’s potential impact on the hiring process was also a concern with industry leaders fearing new complications in the hiring process and retention of employees in an already tight labor market.

Many Democrats in the legislature have joined with advocates in opposing changes to Issue #2 beyond the required regulatory licensing guidelines. They have urged the legislature to refrain from making major substantive changes to the initiative language that was overwhelmingly approved by voters. The proposed bill included provisions that would set up a process for the expungement of marijuana possession convictions that was not a part of Issue #2 but has been favored by Democrats and criminal justice reform advocates for many years. The language included creating a funding stream to cover court costs and legal fees related to expungement. 

The Ohio Senate Bill 86 was overwhelmingly passed on a bi-partisan basis on Dec. 6, 2023, by a vote of 28-2. Lawmakers in the Ohio House and Senate are expected to pass the final version of SB 86 in the coming weeks.