Gov. John Kasich (R) has signed legislation making Ohio the 25th state to legalize the purchase, dispensation, and use of marijuana to treat patients diagnosed with a qualifying medical condition.
Starting September 8, Ohioans may use marijuana legally if their physician has certified in writing the patient has a “qualifying medical condition,” the physician’s opinion is the benefits of using the drug outweigh its risks, and if the physician has briefed the patient on the risks of marijuana use.
Numerous Ways to Qualify
Qualifying medical conditions include 20 diseases, disorders, and syndromes identified in the law’s text, intractable or chronic and severe pain, and other conditions the state’s medical board may add in the future.
For patients to obtain marijuana under the law, their physicians must apply on their behalf to the State Board of Pharmacy for an identification card. Patients must present their ID cards to authorized medical marijuana dispensaries for those providers to dispense the drug legally. The board may negotiate reciprocity agreements with states whose medical-marijuana authorization requirements are “substantially comparable” to Ohio’s.
The law will take effect before the board has fully implemented the application and dispensary process. An “affirmative defense clause” will absolve patients with written physician certification who possess and use marijuana between September 8 and 60 days after the board starts accepting patient applications.
Sponsored by state Rep. Stephen Huffman (R-Tipp City), House Bill 523 passed the House 67–29 and the Senate 18–15 on May 25. The law’s passage followed the November 2015 defeat of a ballot initiative that would have amended the state’s constitution to allow the growth, sale, and use of recreational marijuana.
Lawmakers’ Preemptive Strike
Josh Brown, a health care policy analyst and attorney who represents clients before the Ohio General Assembly, says state legislators stepped in because of Ohioans’ widespread support for medical marijuana and the prospect of the drug’s approval by another ballot initiative in 2016.
“The General Assembly generally was committed to passing the law through legislation,” Brown said. “Other states have done it through constitutional referendum, and that makes it much more difficult for the legislature to amend the code sections.”
HB 523 is lawmakers’ preemptive strike against the extremes of unnecessarily banning patient use of marijuana and implementing a cannabis free-for-all, Brown says.
“The legislators passed the bill because of two reasons,” Brown said. “First, many think that marijuana has legitimate medical purposes. Second, they were concerned that an under-regulated framework would likely pass by ballot initiative if they did not pass something themselves.”
Don Boyd, director of labor and legal affairs at the Ohio Chamber of Commerce, says controlling the medical-marijuana approval process in the legislature is preferable to a constitutional amendment by ballot initiative.
“The Ohio Chamber did not endorse the legalization of medical marijuana in Ohio,” Boyd said. “However, given polling numbers and Ohio’s ballot-initiative process, we believed that, if it was going to happen, it should be done legislatively rather than inserting it in Ohio’s constitution.”
Disorder in the Court?
Whether courts will uphold the law’s language protecting an employer’s right to refuse or terminate employment of a medical-marijuana user remains to be seen, Boyd says.
“The employer protections, advocated by the Ohio Chamber, are important to provide businesses the ability to maintain safe work environments,” Boyd said. “While there is a chance these provisions could be challenged, an employer’s ability to terminate an employee for using medical marijuana has been upheld in other states due to the fact that marijuana is still illegal under federal law and a Schedule I narcotic.”
Brown says conflicts between state and federal laws force employers to operate in an unpredictable legal environment.
“State legislatures and initiative committees place a challenging burden on employers by passing state laws, like HB 523, that are clearly superseded by and contradictory to federal law,” Brown said. “In the area of employment-discrimination law, many courts have entertained legal theories so unpredictable and contradictory in recent years that employers have a lot to fear and not much they can do about it.”
Good Weed, Bad Weed
Brown says lawmakers studied other states’ medical-marijuana laws when revising the law to ensure a broad spectrum of Ohio patients could obtain the drug.
“The authors looked at Minnesota and New York in particular and attempted to be more broad in terms of who could access the drug,” Brown said. “The latest version changes the previous version’s more-stringent requirements for qualifying pain conditions, specifically saying that the pain must be chronic and severe or intractable, instead of chronic, severe, and intractable. This is an important distinction.”
The law’s protection of municipalities’ authority to set their own marijuana laws preserves an important check against abuse of the drug, Brown says.
“Luckily, HB 523 still allows local communities to regulate marijuana, because, in my opinion, the bill is a gateway toward abuse of marijuana,” Brown said. “It is entirely likely that the protections against abuse in HB 523 will be sufficient, but past experience suggests that if we cannot control prescription-drug abuse or illicit-drug abuse, we are just as unlikely to control marijuana abuse.”
Lindsey Stroud, “Could Medical Marijuana Combat Prescription Opioid Abuse in Florida?” Research & Commentary, June 27, 2016.
Lindsey Stroud, “The Fiscal and Social Implications of Marijuana Legalization,” Research & Commentary, June 1, 2016.
Ohio HB 523 Medical Marijuana Act, Ohio House of Representatives, May 25, 2016.