Columnist Mary Jane Borden gives us a deep dive into Ohio Senate Bill 9 and it’s potential impact on the state’s medical marijuana program.
The THC. Testing. Taxes. Testimony. Timeline.
There was a time, back in days of yore, when Ohio patients felt lucky to have just one medical marijuana bill introduced every other year, one in each of the General Assembly’s two-year sessions. Five bills in 10 years. All went nowhere.
What a difference a decade makes. The last two-year session of the Ohio legislature ‒ 2021-2022 ‒ produced eight bills: four adult use, two to revise marijuana penalties, and two to improve the current program. And, the 2023-2024 session started off with the almost immediate introduction of Senate Bill 9, essentially a reintroduction of S.B. 261 from last year that was a revision of H.B.523, the medical marijuana law passed in 2016.
This Mary Jane’s Guide takes a deep dive into S.B. 9 and its testimony thus far.
WHAT is S.B. 9?
S.B. 9 stands for Senate Bill 9, with bills numbered from 1 starting at the beginning of the two-year legislative cycle (2023-2024). If not passed, bills expire at the of each cycle. Thus, S.B.9 is a continuation of the expired S.B. 261 from 2021-2022.
S.B. 261 was introduced into the Ohio Senate by Senator Stephen Huffman (R-5) on 11/21/21. Its short title read “amend the law related to medical marijuana,” that law being H.B. 523, Ohio’s medical marijuana law that passed in 2016. S.B. 261 passed the Senate on 12/15/21 by a vote of 26-5. It moved to the Ohio House on 12/22/21, where it was referred to the Government Oversight Committee. Five hearings were held. A total of 31 persons – proponents (3), opponents (14), and interested parties (14) – submitted testimony. The last hearing happened on 11/17/22. No other action occurred for the remainder of the session.
S.B. 9 was introduced on 1/11/23, shortly after the commencement of the 2023-2024 cycle. Senator Stephen Huffman again served as the bill’s sponsor, along with the co-sponsorship of Senator Kurk Schuring, who also championed H.B. 523. The bill was referred to the Senate’s General Government Committee. Four hearings have been held so far, with a total of 50 individuals offering testimony. In sum, they were 14 proponents, 9 interested parties, and 27 opponents.
WHO are S.B. 9’s “OPPONENTS” this TIME?
The four hearings so far for S.B. 9 reflect its predecessor S.B. 261: opponent testimony outnumbered proponent and interested party testimony combined. Of the 50 testimonies, over half voiced some form of opposition. In contrast, H.B. 523 in 2016 had 87 testimonies, with only eight opposing. Critical reading of these documents, however, reveals that oftentimes, the “opposition” really reads like constructive criticism.
While many so-called opponents comprised the “usual suspects” (Tuscarawas County officials, prosecuting attorneys, Christian groups, and drug free coalitions) a surprising number of speakers represented program licensees: cultivators, processors, and laboratories. They included Acreage Holdings, Standard Wellness, Rivera Creek, Pure Ohio Wellness, ACT Laboratories, and Noorah Labs.
Some of their concerns were well taken. For example, Bob Miller of ACT Laboratories stated, “As written, lines 2161 – 2176 of Senate Bill 9 requires testing laboratories to use a list of specific testing procedures and standards from two different organizations: Six from AOAC International, Six from ASTM International. … [they] do not ensure that these methods are the best available, that they are the most accurate, or that they are reliable on a long-term basis.” While framed as “opposition,” in reality, Mr. Miller’s thoughts are better labeled constructive criticism.
Matt Close with Ohio Medical Cannabis Industry Association said in his testimony, “… patients aren’t purchasing all the medical marijuana existing operators are producing. Cultivator and processor vaults are full.” He went on to state in a WCPO article, “We [The Ohio Medical Cannabis Industry Association] strongly oppose Senate Bill 9 … It’s about economics 101 — it’s supply and demand.” Daniel Kessler of Riviera Creek reiterated, “the industry today is in a state of overproduction.” Other industry “opponents” agreed that oversupply was indeed a problem.
S.B. 9 HEARING – 3/14/23 – Mary Jane’s Testimony
The following text comprises Mary Jane’s testimony at the 3/14/23 Ohio Statehouse hearing on S.B. 9. A PDF of her words can be found here. Suggested changes to S.B. 9 are here. A video of the hearing is here. Her testimony lies at the very end of the video.
One more point about the hearing. Approximately 33 minutes into it (see video) was the most impassioned testimony of the day. A former police officer described how his successful law enforcement career took a hard right turn into brain cancer. To ameliorate its debilitating symptoms, he took the courageous step of utilizing RSO/FECO as treatment. As so many have found, it became “huge part of [his] pain relief and longevity.” But the best part of the testimony was the reaction of committee Chairman Rulli. Well exceeding the allotted time, the patient and the chairman went back and forth on this topic – particularly the endocannabinoid system – to the point that Chairman Rulli indicated that he got it, he understood. For all patients, this level of understanding by public officials is essential to rendering change. In fact, this compelling give and take represented social change in action.
WHAT’S NEW in S.B.9.
- NEW. Medical conditions. These include: Arthritis; Migraines; Autism spectrum disorder; Spasticity or chronic muscle spasms; Hospice or terminal illness; and Opioid use disorder. They raise the condition number to 27 excluding the ‘blanket’ recommendation that a physician can give if he/she believes it is as debilitating to the patient as the named condition.
- NEW. “Foreign Patient Database.” No, this has nothing to do with other countries. Instead, it is a mechanism by which those from other states can register to make purchases at Ohio dispensaries. It addresses reciprocity.
- NEW. Institutional Investors. Licensed medical marijuana businesses can seek funding from hedge funds, banks, insurance companies and other financial institutions. The “ownership interest” of 5% to 15% would be for investment purposes only.
- NEW. Oversight Commission. Remember the Advisory Committee from H.B. 523? This is its reinvention with teeth. The 13 lifetime appointees to the Committee help to administer the program.
- NEW. Named standards. Product testing must comply with 12 specified standards from the American Society for Testing and Materials (ASTM) and the Association of Official Agricultural Chemists (AOAC).
- Increases THC percentage for extracts to 90%. This is very good news to patients who utilized high concentrate THC to treat the symptoms of cancer, MS and other conditions. Let’s remember this is a medical program and that the prescription drug Marinol is 100% THC.
- Dissolves the Pharmacy Board’s Role. Pharmacy board functions in the current medical marijuana program will be transferred to the newly created Division of Marijuana Control (DMC) under the Ohio Department of Commerce. (Note: oversight in the RMLA initiated statute falls to the Division of Cannabis Control also under the Department of Commerce.)
- Allots dispensaries to Cultivators. Ninety days after effective date of S.B. 9, the division is commanded to issue two provisional dispensary licenses to each Level I cultivator and one such license to each Level II.
- Stand-alone processors. Licensed processors, who applied for but didn’t get a cultivation license, can apply for a provisional one under this new category. The cultivation facility must be located on the processor’s existing site.
- Testing fails. If a product test falls outside of typical results or otherwise fails, retesting may be done by a laboratory other than the original one. Plant material and products that fall outside of testing limits for contaminants may be refined.
- Dispensary ratios. The number of retail dispensary licenses permitted at one time is based on achieving a ratio of at least one dispensary per one thousand registered patients up to the first 300,000 registered patients. Thereafter, additional dispensaries can be added on an as-needed basis. Dispensaries license numbers are to be evaluated at least once every two years. New dispensaries must be more than one mile from existing dispensaries.
- Dispensary medical director. Medical director of a licensed dispensary (if there is one) may recommend medical marijuana as a treatment.
- Physician recommendations. Now submitted to the Division instead of the Pharmacy Board.
- Equity Study. The department of administrative services is instructed to conduct an equity study of the medical cannabis industry and the medical cannabis market to determine whether there is a compelling interest to implement remedial measures, which may include applying the requirements of the minority business enterprise program and assisting minorities and women in the medical cannabis industry.
WHAT REMAINS the SAME:
- Physicians still recommend.
- Smoking still banned.
- No home grow.
- Patient purchases still reported to OARRS (state drug database).
- Medical marijuana still designated Schedule II.
- Canna-businesses still reside 500 feet from schools, churches, library, playgrounds and parks.
- Still has special provisions for caregivers, veterans, and indigent programs.
- Possession maximum still ‘Ninety day supply,’ but clarified as nine ounces.
- Criminal background checks still conducted on employees.
- Patients still subjected to discrimination by public and private payors who remain exempt from covering cannabis-related healthcare expenses, including Medicaid, workers compensation, self-insured employer programs, and health plan insurers.
IS S.B. 9 NECESSARY?
Yes, for several reasons:
- Establishes division of marijuana control (DMC) in the department of commerce is a positive move. Five different state regulators governing one program became confusing, with cultivators and processors overseen by one agency, while their patient customers fall under another. (see p. 4 of this H.B. 523 PDF) With one overarching authority, the proverbial “right and left hands” should better communicate with one another, saving time, energy and money.
- Moves pharmacy board functions to the division. Placing dispensaries – formerly managed by the pharmacy board – under the same umbrella as the cultivators, processors and testing laboratories will streamline the program. The only concern would be cannabis’ “essential” status during the COVID-19 pandemic – thanks to the board of pharmacy, dispensaries remained open.
- Creates oversight commission. This reinvention of the Advisory Committee from H.B. 523 will help make the program more transparent and accountable to patients. Many agencies operate under commission boards. However, the number of commission members could be reduced, and the lifetime appointments eliminated.
- Permits retesting of products that failed initial testing. Products falling outside testing limits may be refined. Reduces product waste and encourages ‘recycling.’
- Permits dispensaries to advertise. The inability to advertise without prior permission represents an ‘Achilles Heel’ of Ohio’s medical cannabis industry. In some cases, not even freeway signs were permitted. Advertising will help patients navigate products and find dispensaries.
- Commissions equity study. While a far cry from actionable DE&I (Diversity, Equity and Inclusion) programs, this study should inform the OMMCP that equity improvements are needed.
- Maximizes 90% THC percentage. Remembering that the OMMCP is a medical program, high THC content is therapeutically necessary. The recommended THC percentage for “Rick Simpson Oil” (RSO) is 90%. THC rich oils have been successfully used to control cancer and other medical conditions. Marinol, a Schedule III FDA-approved synthetic drug, is 100% THC. S.B.9 merely permits a natural equivalent.
- Adds needed qualifying conditions. Physicians can recommend on the basis of other conditions at their discretion. More than 1,200 conditions reside in the National Organization for Rare Diseases database. Because of their rarity, none would likely become qualifying conditions for the OMMCP. These patients and their doctors should be permitted to participate in the program in the same way as those with more common illnesses.
Future hearings, as well as committee deliberation and floor votes, will determine whether S.B. 9 will make it to Governor DeWine’s desk. Although he has historically opposed cannabis legalization, he has left the door open for consideration of “a proposal in the Ohio General Assembly that would loosen the rules for medical marijuana.” If S.B.9 is that proposal, there’s a good chance it will be enacted. The same can’t be said for adult use, which DeWine and the General Assembly generally oppose.
Adult use. What should not be forgotten from the S.B. 9 discussion is the pending initiated statute to legalize adult use marijuana in Ohio. Called Regulate Marijuana Like Alcohol (RMLA), this proposal would eliminate the need for medical conditions, THC caps, physician recommendations, advertising restrictions, and other market factors that inhibit the growth of Ohio’s medical program. Per a legal agreement reached in May 2022, the first set of 136,729 valid signatures collected for the statute count. As required, Secretary of State LaRose then resubmitted the measure to the Ohio General Assembly on 1/5/23. The legislature has four months to pass it. If it fails, the campaign can recommence its drive on 5/5/23 to collect the remaining 132,877 signatures, with a looming 7/5/23 deadline for placement on the ballot in the fall 2023 general election. There is no evidence on the Assembly’s website that enabling legislation for the statute has been introduced. An overview of this proposed law can be found here.
WANT to MOTIVATE PASSAGE of S.B. 9?
- Testify. Please see this excellent MedicateOH analysis concerning how to testify for S.B.9 and other legislation. Note that you can also submit your testimony online.
- Vote out of committee. If you like S.B.9 as is, you can ask for it to be voted out of the General Government Committee and considered by the full Senate. Contact committee chair Michael A. Rulli (R-33) at 614-466-8282 or https://ohiosenate.gov/members/michael-a-rulli/contact
- Vote out of chamber. If voted out of committee to the Senate floor for a vote, the bill needs to be placed on the legislative docket. Contact Senate President Matt Huffman (R-12) at 614-466-7584 or https://ohiosenate.gov/members/matt-huffman/contact. Remember, once affirmatively voted out of the Senate, the bill would be forwarded to the Ohio House for its approval before going to Governor DeWine for his signature.
WANT MORE INFO?
Check out Mary Jane’s Library. Specifically, “Mary Jane’s Guide to S.B. 9,” whose format is a similar and comparable to “Mary Jane’s Guide to S.B.261” published in 2022 and “Mary Jane’s Guide to H.B. 523” published in 2016. Here is current text for S.B. 9, an LSC analysis of the bill’s provisions and Fiscal Notes concerning its costs. This article in PDF format can be found here.
Editor’s note: MedicateOH thanks the Columbus Free Press for allowing us to republish Mary Jane Borden’s articles to reach a wider audience.
Editor’s note #2: MedicateOH’s Gabrielle Dion, Mary Alleger, and Tyler Baker also submitted written testimony on behalf of SB9.