Issue 3 Explored: Ohio’s Marijuana Amendment

(Fall 2015) Close your eyes. It is November 3, 2015, and you are getting ready to vote. Are you voting “yes” or “no” on Issue 3? Do you know what Issue 3 is about? Do you know what Issue 3 says?

No? Not sure? Well, then keep reading for a primer on Issue 3.

Remember that marijuana legalization is new territory in the United States and often referred to as an experiment. If Issue 3 passes, it will change Ohio’s Constitution. It will need to work in concert with existing law (federal, other state law, local) or be refined through legal wrangling.

The basics

Issue 3, is the constitutional amendment backed by political action committee ResponsibleOhio. It would legalize the cultivation and sale of marijuana; allow individuals, with a certification from a treating physician, to use medical marijuana; and permit the personal (aka recreational) use of marijuana, up to one ounce, by individuals 21 years old or older.

Commercial marijuana would only be grown at 10 pre-selected sites, while Ohioans, at least 21 years old, who purchase a license could possess up to four flowering marijuana plants and eight ounces of usable homegrown marijuana at a given time. Ohioans could also buy, use, possess, transport and share up to one ounce of marijuana.

The amendment establishes, among other items

• An Ohio Marijuana Control Commission consisting of seven members, appointed by the governor, tasked with creating and enforcing the rules and regulations that govern the marijuana industry including the review of research on the medical use of marijuana.
• Ten, pre-selected, site-specific, licensed Marijuana Growth, Cultivation and Extraction (MGCE) facilities to grow all the marijuana to be sold in the state.
• The ability of interested parties to open Marijuana Product Manufacturing (MPM) facilities and retail outlets to sell the drug for personal use.
• A flat tax on gross revenue will be distributed through three funds established in the state treasury with tax revenue distributed monthly. Through a Municipal and Township Government Stabilization Fund and a Strong County Fund, tax dollars will support public safety and health. The third fund will go to the Ohio Marijuana Control Commission for operating costs and public service.

Besides the basic industry framework outlined by the amendment, it establishes a few other ground rules:

• Medical marijuana will only be available to patients and caregivers for purchase at nonprofit medical marijuana dispensaries; it cannot be homegrown for medical use. Health insurance providers and government agencies are not required to reimburse patients for medical marijuana-related expenses.
• Marijuana sold for personal use must be purchased from a retail store. The number of stores allowed in the state will not exceed one store for every 10,000 people, based on population census, and the location of a store must receive voter approval from the local electorate. Products purchased at the store cannot be consumed on the store’s premises.
• Marijuana growth facilities cannot be located within 1,000 feet of tax-exempt houses of worship, public libraries, elementary and secondary schools, state-licensed daycares and public playgrounds in existence on or before January 1, 2015.
  • For marijuana manufacturing, retail stores and medical dispensaries the 1,000-foot restriction is based on facilities’ existence at the time of the license application.
• Public consumption of marijuana (for personal use) is illegal.
• The operation of a vehicle, aircraft, train or motorboat while under the influence of marijuana, even medical marijuana, is illegal. The Ohio legislature will pass laws to enforce these regulations (e.g., to define what would constitute “under the influence”).
• Employers are not required to allow or accommodate the personal use, possession, display or transportation of marijuana in the workplace, nor are employers prevented from restricting the use of marijuana by employees.
• In the case of medical marijuana, an employer must accommodate use as it would with prescribed medications including self-administering on the job.

Your next action steps

Between the amendment’s summary and full text, it is about 14 printed pages and is the first and only proposed legislation, nationwide, that would legalize both medical and recreational use at the same time. To really know what you are being asked to vote on you will need to

• Read the actual amendment and official ballot
• Contemplate the additional factors that govern the practical application of what the amendment states.

The amendment does not claim to supersede federal law which has scheduled marijuana as an illegal substance with no accepted medical use and a high potential for abuse.

Working Partners® strongly encourages business leaders to read three additional articles in this edition,

1. What Should Employers Be Asking About Legalized Marijuana?
2. 10 Things Employees (as Parents, Taxpayers and Voters) Should Know About Issue 3
3. New Business Resource Discussing Ohio’s Marijuana Amendment

A sampling of questions to contemplate

How can an Ohio employer treat medical marijuana use the same as a prescription medication when under federal law, physicians are not permitted to prescribe it and pharmacies are not permitted to sell it? Won’t the employer be caught in the legal middle if they permit use by applying state law when federal law prohibits use?

As written in the amendment, a “treating physician” will verify that an individual has a “debilitating medical condition” for which a medical marijuana certificate can be issued. Yet the well-respected medical publication, The Journal of the American Medical Association (JAMA), recently completed the broadest evaluation of marijuana research to date. They reviewed 79 marijuana studies covering over 6,000 patients and found little evidence supporting the use of marijuana to help conditions typically listed in the legislation. They found “moderate-quality evidence” for only two of the 10 conditions studied — chronic pain and muscle stiffness from multiple sclerosis.

The Ohio Marijuana Control Commission is tasked with creating and updating the list of debilitating medical conditions for which marijuana can be used as medicine. Additionally, the Commission will have the responsibility to “…regulate and ensure the chemical content and/or potency of marijuana-infused products.” An important task as around the country these products have been a threat to public safety up to including deaths.

The Commission will be composed of seven, governor-appointed, Ohio residents and included a licensed physician, a sworn law enforcement officer, a licensed attorney experienced in administrative law, and a patient advocate, an experienced entrepreneur, someone experienced in the marijuana industry and a public member. Are we confident the Commission members will have the qualifications to “regulate and ensure” public safety in all these issues?

The amendment also allows for the licensing of roughly 1,100 retail marijuana stores (based on current census data). This is five times higher than the number of Starbucks stores in the state. While the physical location of these stores is restricted, there are other aspects Issue 3 doesn’t address. For example the number of stores that could be in a given area? While store owners must gain approval from the voters of a local jurisdiction to open a location – similar to alcohol licensing – the amendment is quiet with regards to density. Therefore, some communities could end up with a high density of stores and others could have none. What affects could this have on Ohio communities?

Beyond the community effects of retail marijuana stores, it is also important to consider the effect marijuana has on individuals. The proposed amendment legalizes marijuana for personal use for anyone over 21 years of age. Studies done in states that are further along in this national experiment have examined the impact marijuana usage has on driving, the change in teen’s perception and use of marijuana, underground sales, emergency room incidents and other health impacts. The outcome reports to date are not favorable.

Think through the ramifications

The commentary above only touches on some of the questions Issue 3 raises. This amendment proposes a whole new industry for Ohio and many of the answers to these and other questions do not exist. Other states have staged their entrance into this industry, first legalizing medical marijuana and then legalizing marijuana for personal use (Alaska, Colorado, Oregon, Washington and Washington D.C.) and we are gradually getting data about the impact. With Issue 3, Ohio would be making a broad sweep move of both medical and recreational use.

Make sure when you step into the ballot box in November that you are sure you want to embark on this endeavor – with large public health, legal and safety ramifications – and have given this issue the critical thinking and contemplation it deserves.