Ohio became the 24th state to legalize recreational cannabis in America after a voter-approved recreational marijuana initiative took effect on December 7, 2023. However, the law faces legal challenges and uncertainty as lawmakers, regulators, and stakeholders scramble to set up a system for legal sales, taxation, and regulation of the new industry.
Issue 2: What Voters Approved
Issue 2 was a citizen-initiated statute that was placed on the November 7, 2023 ballot after the GOP-controlled Legislature chose to do nothing. It passed with 57% of the vote, allowing adults 21 and over to buy and possess up to 2.5 ounces of cannabis and to grow up to six plants per individual or 12 plants per household at home. It gave the state nine months to set up a system for legal marijuana purchases, subject to a 10% tax. Sales revenue was to be divided between administrative costs, addiction treatment, municipalities with dispensaries, paying for social equity and jobs programs supporting the cannabis industry itself.
Senate Bill 420: What Lawmakers Proposed
With just days left before the law took effect, Senate Republicans proposed a sweeping rewrite of what voters approved, angering the issue’s backers and alarming both parties in the House. Senate Bill 420 would make several changes to the recreational cannabis law, such as:
- Reducing the homegrown marijuana limit to six plants per household, down from Issue 2 levels of 12 per household.
- Keeping the possession limits that were originally spelled out in Issue 2: 2.5 ounces for plants and 15 grams extracts.
- Returning the THC content limit for plant material to Issue 2 level of 35%.
- Allowing anyone 21 years of age or older to purchase at current marijuana dispensaries once the bill takes effect. Issue 2 did not allow existing dispensaries to start selling until nine months after the law takes effect.
- Providing automatic expungements for any conviction involving 2.5 ounces and below upon application to court.
- Using proceeds from recreational pot sales for legal representation for those people seeking expungements.
- Increasing the approved tax on sale of marijuana products from 10% to 15%, but removing the proposed 15% extra tax on cultivators.
The Senate passed the bill by a 28-2 vote on Wednesday night, but the House adjourned without taking it up, leaving the recreational cannabis law in a state of limbo.
Legal Challenges and Uncertainty: What’s Next
Republican Gov. Mike DeWine urged lawmakers to quickly set parameters for Issue 2, saying the current state of affairs is a “recipe for disaster.” He worried about a worst-case scenario developing, such as black market sales flourishing or fentanyl- or pesticide-laced marijuana products becoming more accessible.
Lawmakers, however, said they need more time to work through the complexities of setting up cannabis sales, taxation, and a regulatory structure. Rep. Jamie Callender said there’s “no drop-dead date” for implementing a legal sales scheme, and that growing marijuana at home or allowing possession can proceed according to the voters’ wishes. He said he wants “to make sure we’re thoughtful, that we’ve had adequate time to look at it and deal with the things that don’t go into effect immediately.”
Rep. Bill Seitz also defended the decision to adjourn without acting on the 160 pages of related legislation now pending in the House. “We’re not going to pass, sight unseen, such a monstrous proposition in 48 hours. That’s nuts,” Seitz said.
Meanwhile, some legal experts have raised questions about the constitutionality of Issue 2 and Senate Bill 420, arguing that they violate the single-subject rule or the separation of powers doctrine. For example, Ohio State University law professor Douglas Berman said that Issue 2’s provision for expunging past marijuana convictions could be challenged as an infringement on the judicial branch’s authority. He also said that Senate Bill 420’s provision for using marijuana tax revenue for legal representation could be seen as an appropriation that should have been in a separate bill.
The legal challenges and uncertainty surrounding Ohio’s recreational cannabis law could lead to lawsuits, delays, or even a repeal of the law by the Legislature or the voters. As of now, Ohioans can legally grow and possess cannabis at home, but cannot legally buy it anywhere.