Issue 2: Legal Recreational Cannabis May be Coming to Ohio
On the ballot in Ohio’s 2023 general election is Issue 2: a citizen-initiated state statute that would legalize and regulate the cultivation, processing, sale, purchase, possession, home growing and use of cannabis by adults at least 21 years of age. This initiative, if passed, would have a major impact on Ohio citizens and businesses, as summarized here.
The biggest change in Ohio law would be the legalization of possession of cannabis products for recreational use. Adults:
- could possess 2.5 ounces of cannabis and 15 grams of cannabis extract.
- could grow six plants per person, with a 12-plant maximum for a household with two or more adults, provided homegrown plants are secured and hidden from public view.
- would be able to purchase cannabis products for recreational use from licensed retailers – subject to a supplemental 10% adult-use tax in addition to ordinary state and local taxes.
Operating a Vehicle
But legalized use does not mean you can operate a vehicle impaired. Operating a vehicle while using or under the influence of cannabis will remain prohibited. Vehicle includes not just automobiles, but also boats, bikes and aircraft. Passengers cannot consume combustible cannabis while in the vehicle.
Division of Cannabis Control
The legislation would establish the Division of Cannabis Control within the Department of Commerce. The Division would provide oversight to and have authority over the adult-use cannabis industry and licensing. The Division ultimately would promulgate the administrative regulations and requirements for licensing as an adult-use cannabis business. The Division also would be required to create the Cannabis Social Equity and Jobs program to remedy the impact from the enforcement of marijuana-related laws and provide business assistance to those who were impacted by these laws and want to start a cannabis business. The creation of a cannabis addiction program would be required as well.
Local Government Regulation
Local governments would be prohibited from limiting or disallowing home growing, as well as limiting research or levying a tax or fee not imposed on other businesses. Notably, local governments can limit the number of or prohibit adult-use operators (cultivators, processors and dispensaries) within their territories. However, existing cannabis operators cannot be prohibited from operating unless their certificate of operation is revoked. A local government can pass a resolution or ordinance within 120 days of a license being issued to prohibit the operation of that adult-use dispensary within its territory. Then, the license holder must use a ballot measure at the next general election to remain operating.
Landlords could prohibit home grow activities and the use of combustible cannabis if these provisions are properly included in the lease. Landlords would not be able to decline to rent to a tenant solely because they are an adult-use cannabis consumer.
The act would protect an employer’s authority to prohibit the adult-use of cannabis through drug-free hiring and employment policies. The legislation would not require an employer to accommodate use, possession or distribution of cannabis. An employer would not be prohibited from choosing whether to employ someone based upon their cannabis use. Additionally, termination for violation of one’s employer’s cannabis/drug policies would be a for cause termination. If Issue 2 passes, it would be prudent for employers to review their drug policies and clarify such with their employees, including whether and when cannabis consumption is permitted.
Changes to the Law
All of this comes with the caveat that the Ohio legislature could amend, modify or even eliminate the provisions of Issue 2 through the regular legislative process because it is a citizen-led legislative initiative and not a constitutional amendment. Nonetheless, if the Issue passes, cannabis law in the State of Ohio is likely to undergo significant change, and citizens and businesses alike should be prepared.
If you have further questions about Issue 2, please contact one of our Cannabis and Hemp Industry attorneys.
Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.