Initiate this: Adult Use Comes to Ohio. The Regulate Marijuana Like Alcohol initiative and its Path to Potential Passage.
Drum roll please … within approximately one month, cannabis will … or should … take center stage at the Ohio Statehouse. That is when the General Assembly is mandated by the Ohio Supreme Court to follow the rules regarding citizen initiated statutes. Legislators must consider Regulate Marijuana Like Alcohol (RMLA) Act. Will they, is a matter of debate.
But first terminology. Should the non-medical cannabis market be called “recreational” or “adult use”? The problem with “recreational” is that it sounds like a sport, say, a hemp football. The term “adult use” is a better fit because it frames use as belonging to those over age 21, nullifying opponents’ arguments about kids.
It has long been recognized that cannabis legalization in the United States necessitates ballot initiatives. The very first measure in 1972, California Proposition 19, lost, by two thirds of the vote. Initiatives fielded fifty years later have fared much better. In 2022, Maryland voters passed adult use, which won by two thirds of the vote. Twenty-one states and several territories now permit adult use cannabis. Of them, 14 did so via the ballot box.
Ohio suffers from initiative malaise. Of the 10 marijuana ballot issues certified by the Attorney General for signature gathering over the last 10 years, only one made it to the ballot – Responsible Ohio – and then lost badly. All were proposed as constitutional amendments, except one. The outlier? The Act to Control and Regulate Adult Use Cannabis, more commonly known as “Regulate Marijuana Like Alcohol” (RMLA), is a citizen-initiated statue.
As enshrined in the Ohio Constitution, an initiated statute is basically a law proposed by the people submitted for a vote by the people (instead of the legislature). It contains three signature gathering components. Steps include: 1.) collection of an initial 1,000 valid signatures of registered voters on a petition for presentation to the Ohio Attorney General; 2.) with OAG certification (the petition summary is a fair and truthful statement) and a ballot board single subject ruling, collection of valid signatures equaling 3% of votes cast for governor (for the RMLA, that’s 132,887 based on the 2018 gubernatorial election); 3.) referral to the General Assembly (GA), which has four months to act; 4.) if the GA fails to act or passes an amended version, collection of another 132,887 valid sigs; 5.) referral to the Ballot Board for the ballot language and arguments for and against; 6.) ballot placement with a majority (50% + 1) vote required for passage.
RMLA’s signature status
Following the aforementioned steps,theCoalition to Regulate Marijuana Like Alcohol (CTRMLA) submitted sufficient signatures to force the Ohio General Assembly (step 3) to consider adult use cannabis, at least in theory.
Here’s the History: The Coalition submitted its initial 1,000 initial signatures to the Ohio Attorney General on 7/27/21. On 8/5/21, the OAG rejected the measure, unable to certify that its summary was a “fair and truthful statement.” On 8/13/21, the committee representing the petitioners submitted a revised version, the summary of which was certified by the OAG on 8/20/21. The Ohio Ballot Board subsequently ruled on 8/30/21 that the measure met the single subject requirement, the final hurdle to permitting the CTRMLA to collect the 132,887 signatures of registeredvoters necessary to place the law before the General Assembly. By 12/21/21, the Coalition had collected 206,943 signatures and submitted them to the Ohio Secretary of State (SoS). But, on 1/3/22, the SoS determined only 119,825 were valid. Two weeks later on 1/13/22, the Coalition turned in another 29,918 signatures, more than double the number needed. Altogether, the SoS determined that the CTRMLA submitted 136,729 valid signatures of registered Ohio voters, 3,842 more than the 132,887 required. Total signatures equaled 236,861; validity rate of 58%.
Tanked by timing?
Supposedly, once signatures have been submitted to the Secretary of State (SoS), the ballot language would be forwarded to the General Assembly, which the SoS did on 1/28/22. But technicalities ensued.
The Ohio Constitution reads, “When at any time, not less than ten days prior to the commencement of any session of the general assembly, there shall have been filed with the secretary of state a petition signed by three per centum of the electors and verified as herein provided, proposing a law, the full text of which shall have been set forth in such petition, the secretary of state shall transmit the same to the general assembly as soon as it convenes.”
The petition was indeed submitted 10 days before the start of the legislative session on 1/19/22. However, Secretary of State Frank LaRose found a signature shortfall on 1/3/22 that forced the coalition to further collect until 1/13/22. So, what is the qualifying date? The CTRMLA filed a lawsuit in the Franklin County Court of Common Pleas to find out. The coalition contends that the 1/28/22 referral to the OAG was correct and that the initiated statute process for RMLA should continue. Republican House and Senate leadership, on the other hand, wanted to see the process delayed to 2023 or tanked altogether. Why? Referendums “brought out a million voters that nobody ever knew were coming out.” In other words, voters keep Republicans from winning elections.
On 5/12/22, the lawsuit filed by the RMLA coalition against state officials was settled. The initiative did not appear on the fall 2022 ballot as planned. However, as a compromise, the first set of signatures submitted in December 2021 and January 2022 do count, and Secretary of State will re-transmit the measure to the General Assembly at the start of the first legislative session on January 3, 2023, opening the four-month window for consideration. If the legislature again fails to act, the coalition can collect the second round of signatures in May for a vote as early as the fall 2023 general election. Here is a copy of the settlement agreement.
What RMLA does
When enacted as a new Chapter 3780 of the Ohio Revised Code, the law would, “authorize and regulate cultivation, processing, sale, purchase, home grow, and use of adult use cannabis by adults at least twenty-one years of age (‘adult use consumers’).” On 4/20/22, Reps. Casey Weinstein (D-37) and Terrance Upchurch (D-10) introduced H.B. 628 that mirrors RMLA, but no further legislative action on it has been taken since then.
- Consumers over age 21 may use, possess, give and transport cannabis. (Section 3780.01)
- Possession limits: two and a half ounces of plant material and/or fifteen grams of extract. (3780.36)
- Forms: plant material and seeds, live plants, clones, extracts, drops, lozenges, oils, tinctures, edibles, patches, smoking or combustible product, vaporization of product, beverages, pills, capsules, suppositories, oral pouches, oral strips, oral and topical sprays, salves, lotions or similar cosmetic products, and inhalers. (3780.04)
- Home Grow: cultivation of six plants at private residence or twelve plants with 2+ residents. (3780.29)
- Regulator: Division of Cannabis Control to be established under the Ohio Department of Commerce. (3780.03)
- Cultivation: current medical marijuana cultivators can expand their current facilities to 100,000 square feet (Level I) and 15,000 square feet (Level Il). Creates new Level III cultivator that can have up to 5,000 square feet of growing area. (3780.07)
- Dispensaries: Level 1 and Level II cultivators can have dispensary licenses at the location of their cultivation facilities. (3780.10)
- Opt-out: local municipalities and townships may prohibit or limit adult use operators except for the existing medical marijuana ones. (3780.25)
- Social Equity: establishes a broad based social equity program including an advisory board, record expungement and funding for criminal justice reform. Allocates equity licenses to forty level III adult use cultivators and to fifty adult use dispensaries. (Section 3780.18)
- Taxation: 10% “adult use tax” paid by purchasers at adult use dispensaries. Tax revenues allocated to five funds. (3780.23)
- Protections: 1) disciplinary action against professional or occupational licenses, including concealed handgun licenses; 2) field sobriety tests and suspension of driver’s license solely for adult cannabis use; 3) determining child abuse or custody; 4) disqualifying medical care or transplants; 5) sole reason for rejection as a tenant. (3780.33)
- Employment: employers can still discipline employees for their cannabis use and enforce drug testing, drug free workplace and zero-tolerance policies. Employees cannot sue. (3780.35)
Who is fielding RMLA?
The Coalition to Regulate Marijuana Like Alcohol (sometimes called the “campaign”) is a ‘ballot issue committee’ (PAC), a type of political action committee that supports or opposes ballot initiatives like constitutional amendments, proposed laws, liquor options, referenda, etc. These organizations are required to file detailed financial reports with the Secretary of State like as this one for the CTRMLA. This report makes clear that RMLA is part of a larger national legalization effort spearheaded by the Washington, DC based Marijuana Policy Project. Also supporting RMLA are the Ohio medical marijuana companies Buckeye Relief, Riviera Creek, and Standard Wellness, among others.
What does the public think?
Public opinion polling can be a harbinger of an initiative’s success or failure. For Ohio, it’s who you ask. A Spectrum News/Siena College Poll in October 2022 found majority support for the “recreational” marijuana, basically RMLA, largely driven by Democrats (79%) and Independents (61%). Only 40% of Republicans agreed. Another poll by Emerson College in March 2022 placed those in favor of adult use legalization at 50.4%. A Gallup analysis released mid-November 2022 overviewed the 50-year sea change in cannabis support, ranging from just 12% in 1969 to 68% presently. Strongest backers include Democrats and young adults. Opponents are those who attend church weekly, conservatives, Republicans and older adults.
It is also useful to ascertain the thinking behind the political parties. For example, the Democratic Party’s platform states, “We will support legalization of medical marijuana, and believe states should be able to make their own decisions about recreational use.” The Republican Party’s recently released “Family Policy Agenda” diametrically opposes, “Congress should not legalize marijuana, while also taking steps to constrain this new industry’s ability to harm children.”
As noted above, those who oppose RMLA comprise the usual suspects: older church going Republican conservatives and members of the Ohio General Assembly with a few notable exceptions. These well-funded naysayers testified against expansion of the medial program via S.B. 261 and argued in a letter to Ohio officials that that “legalizing commercial marijuana is a bad idea,” citing the American Medical Association, the opioid epidemic, employee accidents, impairment testing, the illicit market, psychosis, addiction, and budget deficits. Some opponents say Ohioans are “not quite ready yet”. This topic was covered in Mary Jane’s Guide: Opposition Research Concerning Cannabis in Ohio and Mary Jane’s Guide: Opposition Research Concerning S.B. 261.
The General Assembly, where RMLA will be introduced in January 2023, will be newly seated following the fall 2022 midterm elections. The Ohio House of Representatives will consist of 67 Republicans and 31 Democrats, giving Republicans a supermajority of 68%. (As of this writing, District 5 represented by Democrat Richard Brown is undergoing a recount.) A similar, but more stark contrast will exist in the Ohio Senate as witnessed in this table – out of 33 total Senators, just seven are Democrats; an overwhelming 26 will be Republicans, resulting in a supermajority of 79%!
Some of the same faces from the prior 134th legislative session will remain. The Ohio Senate majority unanimously reelected Matt Huffman (R-12) as President for the upcoming 135th General Assembly. The House selected Derek Merrin (R-42) as Speaker-Elect.
The midterms saw the reelection of the entire executive branch with the same voices of opposition remaining for four more years, including Governor Mike DeWine who has repeatedly stated his hostility to adult use cannabis.
It is also worth noting that the midterm election shifted three open seats on the Ohio Supreme Court to Republicans. With the three remaining Democratic justices coupled with Governor DeWine’s likely appointment of a Republican associate justice, the court will have a 4-3 Republican majority. The court is the arbiter of ballot issues.
Ohio is a “trifecta” state. That’s when all branches of government – the legislative, executive (and in Ohio’s case judicial) – hail from the same party. Further, it’s a “trifecta with a supermajority” and a “triplex” with the governor, attorney general, and secretary of state all affiliated with the same party. The Buckeye State has held this moniker for most of the last three decades. While single party rule might minimize gridlock, it’s still antidemocratic and gives the party in control the ability to pass its agenda, however controversial, unimpeded by opposition or the people.
Even though the Ohio General Assembly is constitutionally obligated to consider the initiative, both Ohio Governor Mike DeWine (R) and Ohio Senate President Matt Huffman (R-12) deemed it a non-starter. Calling it “a mistake,” DeWine has stated he will veto any bill to legalize marijuana in Ohio. Last year, Huffman said much the same, “I don’t want anybody to misunderstand my position … I’m not going to bring it to the Senate floor. And if that means people want to go put it on the ballot, have at it.” Another stumbling block is the 31 Republican House reps who have explicitly stated their opposition to adult use.
Republicans can have other tricks up their sleeves. During lame duck legislative session following the 2022 midterms, Ohio Secretary of State Frank LaRose proposed revisions to Ohio’s election laws, one of them to raise the passage threshold for citizen led constitutional amendments from 50% to 60%. Enabling legislation, introduced by Rep. Brian Stewart (D-12) on 11/17/22 as House Joint Resolution 6, must pass both houses with three-fifths majorities before ballot placement as early as Spring 2023. Ironically, the Resolution just needs a legislative majority (50%+1) to pass. However, it ONLY pertains to constitutional amendments, leaving the percentage for passing an initiated statutes at a simple majority.
The GOP can also flex is trifecta muscles in other ways. In 2015, the General Assembly fielded Issue 2, the legislatively referred Ohio Monopolies Amendment. Issue 3 that year would have legalized adult use cannabis via a constitutional amendment using an oligopolist model. Issue 2 created a ‘monopoly test’ for all proposed amendments and even put the “November 3, 2015” election date into the Constitution. Essentially, Issue 2 would have invalidated Issue 3 had the latter passed. The General Assembly crafted all of this in just two weeks.
Considering the Ohio’s Republican trifecta and triplex and even though a bill mirroring RMLA has already been introduced, it is difficult to envision a legislative path for RMLA during the mandated four initiated statute window. If it is formally introduced as a bill, provisions like social equity and homegrow might be stricken by Republicans, changing the measure from its original format.
While the Ohio polling is thin at little over 50% support, there’s still time to put it in the range of other adult use initiative efforts, whose approval percentages ranged from 50.26% (Maine) to 67% (New Jersey). Recent votes in Missouri (53%) and Maryland (67%) show what may be possible for Ohio. Factors that improve public opinion include federal legalization (passage of the Safe Banking Act, etc.), positive news coverage, and a functional medical cannabis program.
The recent losses prove informative as well. Early in the campaign for the 2022 adult use measure in Arkansas (56% voted no), positive polling eclipsed 58%. But it dwindled over time as concerns over the ballot language arose. The campaign’s conservative Republican opposition subsequently joined with distraught cannabis advocates to create a losing scenario similar to what plagued Ohio’s 2015 cannabis initiative.
Perhaps the biggest obstacle facing RMLA may be an increasingly active, vocal and well-funded opposition largely consisting of Republicans, conservatives, the religious right and older adults. Proponents who disagree include Democrats, independents, and young to middle-aged adults.
Which raises the question of timing and demographics. About 18% of Ohio adults are over age 65. They represent the second largest voting block with twice the number of voters as those under 35. Off year elections often suffer from low turnout that skews toward the older, whiter, wealthier and conservative voter. Responsible Ohio in 2015 (Issue 3) unfortunately serves as the perfect example. Considering Ohio’s demographics and the prior loss that resulted from failing to consider them, the question becomes, if the CTRMLA pursues ballot placement, should it wait until the presidential election year of 2024?
Coalition spokesperson Tom Haren remains confident that voters will pass the RMLA initiative on time. As he stated to the Toledo Blade, “To be certain, we aren’t going anywhere and are undeterred in our goal to legalize cannabis for all adults in Ohio.”
Mary Jane’s Advice:
To the campaign: You’re doing a good job so far. Avoid campaign mascots and gimmickry. Involve grassroots activists and appreciate their understanding of the local playing field. When controversies arise, address them quickly, thoroughly, and honestly.
To the activists: Don’t let the perfect be the enemy of the good. If provisions need to be dropped to ensure passage,understand that they can be added back legislatively at a later date. Avoid infighting, the enemy of progress.
To the State: Respect the will of the people that you were sent to represent. Stop attempting to sabotage issues you don’t like. We the People will determine the course of cannabis in Ohio. Your role is to establish reasonable guardrails.
To the Opposition: It has been said Jesus used cannabis oil to perform miracles. Are you still intent on incarcerating others for a simple plant? Could powerful corporations be using you to bolster their profits? WWJD?
To the OMMCP critics: Double, triple check the basis of your concerns. Reference multiple reputable sources. Report articulately without a negative bias. You may be right, but do you want the opposition to amplify your gripes and defeat RMLA?
To the OMMCP LLCs: If you are taking short cuts, spiking products or doing something improper, stop. A scandal could make the industry look irresponsible, give the opposition talking points, and tank everything in which you have invested.
What you can do
- Ask General Assembly to consider RMLA. Contact Speaker-elect of the House Derek Merrin (R-42) at 614-466-1731, or Senate President Matt Huffman (R-12) at 614-466-7584 or email@example.com.
- If the RMLA stalls in the legislature, volunteer to collect the next round of signatures. Sign up at the campaign’s website here.
- Familiarize yourself with the campaign’s talking points. In social media, on podcasts or even with family and friends, counter the opposition’s concerns with substantive facts.
Editor’s Notes: Sources are linked. CTRMRL spokesperson Tom Haren was contacted, sent the article, and asked for comment.
Tables and lists referenced for this article
Here is RMLA’s searchable text in PDF format.
Here is one-page bulleted key point list of its provisions, and here is a similar key point list of H.B. 628 as introduced on 4/20/22 that mirrors RMLA. Here are its 2021 campaign contributions, here are its expenditures and here are its debts. The Ohio Constitution can be found here. Procedures for “Initiative and referendum to enact laws” are detailed on Page 7. And here are the of the 2022 midterm election results for the Ohio House and Senate.
Disclaimer: The opinions expressed in this article are Mary Jane’s and hers only. They may not reflect those of any entity with which she is affiliated.