With adult-use Ohio not yet finalizing its rules regarding cannabis advertising and other regulatory concerns, some dispensaries are capitalizing upon the lack of legal consistency by sending ads to surrounding states. Northern Kentuckians recently received a coupon in their home mailboxes from a dispensary just across the river in Cincinnati. Cannabis isn’t legal in Kentucky, nor is it legal to cross state lines with it, so the ad was met with some confusion.
Ohio Cannabis Laws Don’t Extend Outside State
Despite its proximity, Ohio’s cannabis laws don’t extend to Kentucky or any other state. When asked about the ad in question, Ohio Division of Cannabis Control (DCC)’s Public Information Officer James Crawford said, “While there is not a specific rule prohibition stating advertising can only happen in the State of Ohio, all Ohio Licensees are required to follow the advertising rules regardless of where those advertisements may appear.”
MedicateOH is withholding the name of the dispensary in question, but citizens can learn more about the ad that was sent here. The promotion sparks concern among Kentucky advocates, who already face an uphill battle with misinformation regarding their state’s cannabis policies.
What Is the Current Cannabis Policy for Kentucky?
On Nov. 15, 2022, Governor Andy Beshear issued an executive order providing access to medical cannabis for Kentuckians who suffer from at least one of 21 medical conditions. Kentuckians who use cannabis as medicine as part of an established relationship with their doctors are “covered” under this order. This means if they purchase cannabis from other states and are stopped with it in their car, they would be pardoned from criminal prosecution.
Possession of cannabis without medical need is still a misdemeanor in Kentucky. Trafficking in less than 8 ounces is a misdemeanor for a first offense, punishable by 0-12 months jail time. A second offense trafficking under 8 ounces is a felony. Trafficking over 8 ounces is also a felony even for a first-time offense. Outside of patients who fall under the executive order, other Kentucky residents are prohibited from purchasing, transporting, or possessing cannabis products across state lines.
Adding to the confusion, THCA (tetrahydrocannabinolic acid) is currently legal in Kentucky, provided it meets certain conditions similar to those for other hemp-derived products. Under both federal and Kentucky state law, hemp-derived products, including THCA, are legal if they contain no more than 0.3% Delta-9 THC by dry weight. Kentuckians can find THCA products at retail stores and even at some gas stations.
Luckily, Kentuckians don’t have long to wait for their own medical cannabis program to get up and running. On March 31, 2023, Governor Andy Beshear signed Senate Bill 47 (SB 47) into law, legalizing medical cannabis for Kentuckians beginning Jan. 1, 2025. Kentucky medical marijuana patients will be able to buy cannabis products in-state when they get an MMJ card, which will start being issued on December 1st, 2024.
Kentuckians at Risk, Says Attorney
Kentucky attorney Steve Franzen emphasized these legal restrictions, noting that any Kentucky resident caught with cannabis could face legal consequences regardless of where they obtained it. Franzen pointed out that probable cause during a traffic stop could lead to prosecution for possession. MedicateOH previously published this interview with another attorney with tips for cannabis-using citizens on handling a traffic stop.
This marketing effort has raised several legal questions, not just concerning Kentucky residents but also Ohio’s cannabis regulations. In Ohio, all promotional material for cannabis must be approved by the DCC before distribution, to ensure compliance with state guidelines. It remains unclear if the dispensary in question received approval to send promotional material to Kentucky. Additionally, cannabis is still classified as a Schedule I substance under federal law, and advertising it across state lines could potentially violate federal advertising restrictions as well.
The Need for National Cannabis Ad Standards
This incident highlights a broader issue as cannabis legalization progresses across the United States: the need for clear and standardized guidelines on advertising practices across state borders. Marketing cannabis in a state where it’s illegal introduces risks both for the business and the individuals receiving the promotion. The incident with these coupons brings attention to an under-explored aspect of cannabis marketing that could require stricter regulatory oversight to prevent confusion and maintain legal compliance.
As states continue to approach cannabis legalization differently, questions about the legality of interstate advertising remain largely unresolved. Cannabis businesses, especially those near state borders, may need to adapt their marketing strategies to avoid crossing legal boundaries inadvertently. This recent situation could push lawmakers to consider policies that clarify these regulations and address the potential for cross-border marketing mishaps in the cannabis industry.
When will Advertising and Other Rules Be Finalized for Ohio Adult-Use?
Another contributing factor to the confusion is the lack of finalized rules for Ohio’s licensees. The Division of Cannabis Control told MedicateOH they are unable to say when all the adult-use rules will become effective because the rule-making process must first complete several stages that are outside the Division’s control, such as the CSI and JCARR processes.
The Division has published drafts of all required program rules, and they are at various stages within this process. These drafts can be found here. The final rules package (package 7) contains updates to the testing protocols and testing rules. “Since these rules are highly technical, the Division has sought a large amount of stakeholder feedback, as well as expert opinions, for this particular rules set,” Crawford said.
Stakeholders are invited to provide comments to DCCRules@com.ohio.gov.
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