On December 6, 2023, the eve of Ohio’s voter-enacted legalization law taking effect, the Ohio Senate passed a gut-and-replace bill (HB 86-sub) to rewrite the initiative. HB 86 now heads to the Ohio House of Representatives, which reconvenes on December 13.
As originally proposed, the Senate’s rewrite of Issue 2 removed home cultivation, slashed personal possession limits, more than doubled taxes, added harsh criminal penalties, and banned possession except for cannabis purchased from a legal store — which couldn’t open for a year. Two hours before the full Senate voted on HB 86, authors unveiled a new version, claiming it respected the will of voters. It includes two positive features — limited expungement and earlier sales — and removes the ban on home cultivation and the dramatic reduction in possession limits.
But the Senate-passed version of HB 86 still ramps up criminalization — including with new mandatory minimums. It also increases taxes, caps extracts at 50%, bans vaping or smoking cannabis anywhere except some homes, eliminates social equity, makes the sale of flower cannabis impossible, and does away with non-discrimination protections for child custody, organ transplants, and benefits. It also appears to ban sharing cannabis and to re-criminalize any cannabis not obtained from an Ohio-licensed cannabis store, other than one’s own home-cultivated cannabis.
Here's a summary of the Senate-passed bill:
New Prohibitions and Limits
Bans smoking or vaping adult-use cannabis anywhere except in some private homes.
In most cases, the penalty is a minor misdemeanor, with a fine of up to $150.
Smoking and vaping are also forbidden in childcare homes and rented homes where the landlord prohibits smoking or vaping.
Under Issue 2, using cannabis in public areas was forbidden, but private property owners could allow cannabis use in locations such as hotel rooms.
Prohibits adults from sharing cannabis. Issue 2 allowed sharing, as long as there was no remuneration.
Cannabis must be stored in its original packaging at all times.
Requires cannabis and paraphernalia to be transported in “its original, unopened packaging or in the trunk” if there is one, or in a similar location in vehicles with no trunk. Imposes a minor misdemeanor, with a fine of up to $150.
Appears to ban cannabis that was not purchased from an Ohio retailer or cultivated at home.
Keeps Issue 2’s limits of 2.5 ounces, 15 grams of concentrate, and six plants.
Caps the number of plants per residence at six. Issue 2’s cap was 12.
Requires home-grown cannabis to be transported in one’s trunk.
Imposes a three-day mandatory minimum in jail — plus a fine of at least $375 — for passengers smoking or vaping cannabis in a vehicle or boat. Imposes longer mandatory minimums for subsequent offenses, with a fourth offense being a felony. Issue 2’s penalty was a $150 fine.
Repeals Non-Discrimination Protections
Repeals all non-discrimination provisions that are in Issue 2. Removes provisions that adults’ responsible use of cannabis is not grounds for:
adjudicating their child abused or neglected,
making a negative determination about a parent's rights or parenting time,
denying a person medical care, including organ transplants,
suspending one’s driver’s license,
rejecting an applicant as a tenant (unless mandated by federal law), or
disqualifying a person from public benefits.
Specifies a person fired for marijuana use is ineligible for unemployment benefits if the cannabis use violated their employers’ policies.
Limited Petition-Based Expungement
Individuals may apply to have prior records expunged for up to 2.5 ounces and up to 15 grams of hashish. To apply, the applicant must submit evidence that:
the amount was under the threshold
the person did not violate a community control sanction
Creates process to reimburse for applications and for legal aid providing expungement assistance.
Earlier First Sales
Allows existing medical cannabis dispensaries to sell to adult-use consumers if/when the bill takes effect, which would be 90 days after enactment.
This provision would end at a time determined by regulators, which must be within a year.
Raising Taxes
Increases the retail excise tax from 10% to 15%.
This excise tax appears to apply to medical cannabis.
This is in addition to standard state and local sales taxes.
Allows counties to impose a 3% tax to fund entertainment, arts, and culture.
County commissioners would refer the tax question to county voters.
Tax Allocation
Removes Issue 2’s allocations to a social equity and jobs fund and to communities hosting cannabis businesses. Reduces the allocation to substance abuse treatment.
Allocates funding as follows:
up to 28% for county jail construction and renovation
up to 16-19% to the Department of Public Safety for law enforcement training
up to 14% to the Attorney General for law enforcement training
up to 9-11% to substance abuse treatment and prevention
up to 9% for a 9-8-8 suicide prevention and mental health crisis hotline
up to 5% to a marijuana expungement fund, while it lasts (after that, those funds go to substance abuse treatment and prevention and law enforcement training)
up to 5% to a marijuana receipts drug law enforcement fund
up to 5% to the safe driver training fund
up to 4% to the Ohio investigative unit operations fund
up to 3% to the division of marijuana control operations fund
up to 2% to a marijuana poison control fund
Þ If funds hit individual caps, excess funds go to the General Fund.
Licensing and Social Equity
Revises medical cannabis licensing to generally apply those provisions to adult-use businesses and to add language on how applicants will be assessed.
Removes Issue 2’s social equity and jobs program, which required regulators to prioritize certified applicants in new licensing and which provided financial and technical assistance.
Replaces the licensing provisions from Issue 2, which allowed many dispensaries to open a second location and which allowed some cultivators to open retail locations.
Provides the Division of Marijuana Control will determine the number of cultivator licenses allowed at any time.
Caps the total number of retailers at 350.
This is similar to the number that would be licensed under Issue 2. However, Issue 2 allowed regulators to reassess needs every two years and to increase the number.
Requires a half-mile buffer between dispensaries.
Requires applicants to demonstrate they have “sufficient liquid capital and ability to meet financial responsibility requirements” and that there is no local ban or similar prohibition on their operation.
Ranks applications based on factors including business, operations, security, and financial plans; proposed location; plans for generating jobs and economic development; and environmental and employment practices plans.
Provides if the division uses a lottery, it must group applicants into the following categories for their proposals: highly exceeds, exceeds, meets, and does not meet.
Applicants have increased odds of being chosen if they get higher ratings. They are not considered if they are classified as “does not meet.”
THC Cap for Adult-Use Sales
Caps THC at 35% in flower and 50% in extracts. Issue 2 allowed regulators to impose caps of no lower than 35% in plant material and 90% in extracts.
Regulators may impose a higher limit for vaporized products.
Limits servings to 10 milligrams of THC and packages to 100 milligrams, other than cannabis intended for vaporization.
This seemingly makes sales of flower impossible. A gram of cannabis at 35% THC would have 350 milligrams of THC and be more than triple the limit.
Regulation
Removes Issue 2’s provision allowing petitions for additional product types.
Prohibits cannabis products from being sold in a form that “bears the likeness or contains the characteristics of a realistic or fictional human, animal, or fruit, including artistic, caricature, or cartoon renderings.”
Creates “the Ohio investigative unit” — an investigative unit maintained by the Department of Public Safety that can inspect licenses (including their records).
Revises caps on canopies for cultivators:
Level 1 cultivators could grow up to 25,000 square feet, and could get expansions to total up to 75,000 square feet
Level 2 cultivators could grow up to 3,000 square feet, and could get approval to expand to up to 9,000 square feet (Issue 2 allowed no more than 5,000 square feet, but provided could be authorized with no numerical cap.)
Imposes trafficking penalties if retailers knowingly sell any customer more adult-use cannabis than they are allowed to possess in a day.
Requires dispensaries to prominently display “Information about the addictive qualities of marijuana and the potential negative health consequences associated with its use.”
Tasks the Department of Public Safety and its enforcement agents with assisting the Division of Marijuana Control with enforcing the law.
Medical Cannabis
It appears all cannabis businesses would be dual-use, medical and adult-use.
Retailers must:
“Maintain an adequate supply of medical marijuana products to meet typical patient demand for those products.”
“Ensure medical marijuana products are kept separate from adult-use marijuana, properly demarcated as medical marijuana, and prominently displayed in the dispensary.”
Advertising Regulations
Provides the advertising standards for cannabis businesses, “shall be at least as stringent as those that apply to tobacco and alcohol advertisements under state and federal law.”
Provides adult-use cannabis cannot be marketed, advertised, or packaged “using any graphic, picture, or drawing that bears any resemblance to a cartoon character, or any fictional character or popular culture figure whose target audience is children or youth.”