Login | June 17, 2019

Up in Smoke:
Examining the impact of Ohio’s legalization of medical marijuana in conflict with federal law

11th District Court of Appeals

Published: January 3, 2019

In 2016, the Ohio General Assembly passed legislation allowing for the cultivation, processing, dispensing, possession and use of medical marijuana.

While medical marijuana has not yet become available due to delays in the implementation of the processes required to sell and purchase marijuana, it is likely that it will be available for sale in early 2019.

Given this highly significant shift in Ohio drug policy, it is important to examine the legality of Ohio’s law since the federal government prohibits the distribution, manufacture and possession of marijuana for all purposes.

Since federal law preempts state law, the potential conflicts that may arise from Ohio’s legalization of medical marijuana are serious and abundant.

Ohio Medical Marijuana Law

Ohio Revised Code 3796.02, effective in September 2016, “established a medical marijuana control program in the department of commerce and the state board of pharmacy,” and orders that the department must “provide for the licensure of medical marijuana cultivators and processors * * * [and] retail dispensaries.” It also requires that the department shall allow for “the registration of patients and their caregivers.”

Once licensed, cultivators may grow medical marijuana and sell it to licensed processors. R.C. 3796.18. They may then process the marijuana into a saleable form, which includes items such as oils and edibles, but the statute does not allow for the smoking of marijuana. R.C. 3796.19; R.C. 3796.06. Finally, licensed dispensaries may sell medical marijuana obtained from processors to individuals displaying proper identification and possessing a recommendation from a physician holding a certificate to recommend. R.C. 3796.20.

Patients who wish to use medical marijuana “shall apply to the state board of pharmacy for registration” and physicians holding “a certificate to recommend * * * shall submit the application on the patient’s or caregiver’s behalf * * *.” R.C. 3796.08(A)(1). R.C. 3796.22(A)(1) provides that a person “[w]ho obtains medical marijuana from a retail dispensary licensed under this chapter” may use such marijuana. Ohio Administrative Code 3796:7-2-05 requires that marijuana products must be purchased only from a seller licensed by the “state board of pharmacy” or pursuant to a reciprocity agreement.

While the statute permitting medical marijuana cultivation and sale was passed in 2016, dispensaries had not opened as of November 2018 due to various delays ranging from licensing problems to lawsuits.

Sources have predicted that medical marijuana will become accessible by the end of 2018. On Dec. 3, 2018, individuals were able to begin registering to use marijuana for medical purposes, with state officials saying that marijuana products would be available for purchase and use within 60 days.

Since implementation has been delayed for over two years following the enactment of marijuana statutes, the specific challenges of enforcing and applying the law in Ohio are not yet clear.

Questions arise regarding how individuals within the state of Ohio may legally grow, sell, possess and use marijuana given the federal prohibitions on this conduct and what the consequences for doing so may be.

Moreover, there are also concerns regarding the impact of transporting such drugs into and out of the state given the present lack of legally available medical marijuana within Ohio and questions about reciprocity in the future.

Federal Marijuana Law

Federal law clearly prohibits all activities involving the production, sale, and possession of marijuana. 21 U.S.C. 812 Schedule I (c)(10) classifies marijuana as a schedule I controlled substance, the distribution, manufacture, and possession of which is prohibited. 21 U.S.C. 841(a)(1).

No exceptions relating to medical marijuana exist, since Schedule I drugs are those which have “a lack of accepted safety for use of the drug or other substance under medical supervision.” 21 U.S.C. 812(b)(1)(C).

The United States Supreme Court clearly explained this in Gonzales v. Raich, 545 U.S. 1, 27, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), recognizing that the Controlled Substances Act (CSA) “designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses.”

It is also clear that while the sale and use of marijuana has been legalized by many states, transportation of marijuana across state lines is also violative of federal law. 18 U.S.C. 1952(a)(3) and (b) prohibits travel in interstate commerce with intent to carry on “unlawful activity,” including a business enterprise involving narcotics or controlled substances.

Given that the laws of the state of Ohio, as well as those of many other states which have legalized the manufacture, possession, and use of marijuana for either medical or recreational purposes, conflict with the federal law, it is necessary to examine whether Ohio’s new statutory scheme truly allows for legal use and sale of the drug within this state.

Federal Law and Preemption

In light of the foregoing, it is abundantly clear Ohio’s new medical marijuana law as set forth in Revised Code Chapter 3796 is inconsistent with the federal law as stated in the United States Code. This is a conflict that has continued to become a concern as more states have legalized recreational and medical marijuana.

It is well-established under the Supremacy Clause of the United States Constitution that the United States Congress has the power to preempt state laws. Pursuant to Article VI of the Constitution, “the Laws of the United States * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding.” 

State laws can be preempted in several ways. Preemption occurs when the United States Congress explicitly defines that its enactments preempt state law. State laws are also preempted when Congress has created a pervasive scheme of federal regulation which allows for a reasonable inference that there is no room for the states to supplement such law or when Congress legislates a field of dominant federal interest such that preclusion of state laws on that subject is assumed. Altria Group, Inc. v. Good, 555 U.S. 70, 76-77, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008); Arizona v. United States, 567 U.S. 387, 399,132 S.Ct. 2492, 183 L.Ed.2d 351 (2012).

There is little doubt that the United States Congress intended to ban the sale, cultivation, possession, and use of marijuana, including for medical purposes. There is no indication in the existing federal law that states are intended or permitted to supplement said law. Rather, the United States Supreme Court has held that the CSA can regulate marijuana manufacture, distribution, and possession within individual states as well as such activities in interstate commerce since the failure to regulate such activity “would leave a gaping hole in the CSA.” Raich at 22. This would allow for consequences such as a greater national supply of marijuana throughout the country as well as a greater nationwide demand. Id. at 19.

Several courts have addressed the issue of preemption as it relates to marijuana. In Raich, the United States Supreme Court noted that federal power over commerce is superior to the states’ right to “provide for the welfare or necessities” of their citizens. Id. at 29. The Raich court also explained, regarding state marijuana legalization laws, that “even though the Court does not have enforcement authority, its ruling demonstrates that these types of state laws are not recognized as being truly legitimate.” Further, the Supreme Court of Oregon has held that, to the extent the pertinent section of the Oregon Revised Statutes “affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it ‘without effect.’’’  Emerald Steel Fabricators, Inc. v. Bur. of Labor and Industries, 348 Or. 159, 178, 230 P.3d 518 (2010).

It is evident, then, that this conflict in laws can lead to consequences for those who choose to cultivate, sell, or possess medical marijuana within the state of Ohio in violation of federal law, which must be further examined.

Legal Consequences of Marijuana Use Under Current Federal Law

It has been observed that, in past years, particularly during the Obama Administration, enforcement of federal marijuana laws decreased, with the Department of Justice essentially making the decision “not to enforce federal marijuana laws against those in compliance with their states’ laws, while maintaining full enforcement against everyone else.” During the administration, directives were issued by the Department of Justice to United States Attorneys, detailing policies for enforcement of federal marijuana laws selectively, such as in cases involving drug cartels, distribution of marijuana to minors, use of marijuana on federal property, or transporting marijuana to states where possession was still illegal. In a memo issued on August 29, 2013, Deputy Attorney General James Cole noted that outside of the “enforcement priorities * * * the federal government had traditionally relied on states * * * to address marijuana activity through enforcement of their own narcotics law,” and emphasized that states with legalized marijuana were expected to “implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.” It is not immediately evident whether the states were capable of addressing such threats.

Regardless, since President Donald Trump has taken office, there has been a shift in this policy. Attorney General Jeff Sessions rescinded “previous nationwide guidance specific to marijuana enforcement,” citing documents authored over the past decade including those discussed above, in a Memorandum to United States Attorneys on January 4, 2018. In that Memorandum, Attorney General Sessions noted that the Controlled Substances Act reflected “Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.” The Department of Justice, Office of Public Affairs, further explained: “This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.”

Given this policy to properly enforce the federal laws regarding marijuana, those who choose to use, grow, sell, or possess marijuana, even where it may be legal under state law, can face federal consequences. The most obvious impact is federal prosecution even where state law has legalized marijuana. For example, one provider of medical marijuana in Montana, where medical marijuana is legal, was convicted of federal drug charges and sentenced to five years in prison. In California, federal raids on users, growers, and dispensaries have occurred since the legalization of marijuana, with one author noting that “[t]his direct conflict of federal and state law raises serious issues of due process rights-with state governments telling their citizens one thing only to have those citizens suffer federal prosecutions later.”

It is also possible that some states’ legalization of marijuana will have a negative effect not only on the citizens within those states but may create a disparity where the federal prosecutors focus on offenders from states where legalization has not occurred, although this can change based on the administration’s enforcement policy and may not be likely at the current time.

An additional problem with Ohio’s legalization of medical marijuana relates to transporting marijuana across state lines. This issue became relevant in the recent Eleventh District case of State v. Donoho, 11th Dist. Geauga No. 2018-G-0151, 2018-Ohio-4950. In that case, since Ohio has not yet begun the legal sale of marijuana, the concern arose that the defendant may attempt to purchase marijuana from another state to bring to Ohio for medical purposes, which would be a violation of federal law. Even when marijuana products are legally available for sale within Ohio, complications can arise if individuals either try to transport marijuana from Ohio to another state where it is not legal or wish to purchase or use marijuana in such a state.

R.C. 3796.16 sets forth a provision relating to reciprocity agreements in Ohio. It provides that the state board of pharmacy shall attempt to negotiate reciprocity agreements “with any other state under which a medical marijuana registry identification card or equivalent authorization that is issued by the other state is recognized in this state * * *.” R.C. 3796.16(A)(1). This would allow those with valid medical marijuana cards to use marijuana legally within Ohio, although no discussion of whether marijuana could be transported from another state is included in this section. It provides the board of pharmacy with discretion to adopt rules necessary for implementation of reciprocity agreements. Since medical marijuana use within the state has not yet begun, proper enforcement and implementation of such agreements is still unclear.

It must also be emphasized that the law provides the use of medical marijuana is permitted only when an individual obtains the marijuana from “a retail dispensary licensed under this chapter [Chapter 3796].” R.C. 3796.22(A)(1). Licensed dispensaries are permitted to be located in specific geographic regions or districts within Ohio, as established by the board of pharmacy. Ohio Adm.Code 3796:6-1-01(E). There is no evidence that any licensing of dispensaries outside of the state of Ohio has occurred which would permit a resident of Ohio to purchase marijuana from another state for use in Ohio at this time.

Aside from legal problems, there are other consequences for the inconsistency between state and federal law. For example, it has been expressed by authors such as Mortensen, supra, that states may “undercut the role of the [Food and Drug Administration] and bypass them as a regulatory safety net or filter for keeping Americans safe from dangerous substances.” While individual states may develop plans for ensuring the safety of medical marijuana, questions arise as to whether this will be adequate or as effective as the FDA. Other concerns that have been raised include determining the proper taxation of the marijuana industry and ensuring that lawyers who seek to counsel individuals on the use of marijuana, due to the conflict between federal and state law, do not violate any ethical rules.

Given the current federal law and its clear prohibition of production, sale, possession, and use of marijuana, the road forward in Ohio and other states that have legalized these activities in some form is paved with difficulties and legal consequences. Citizens of Ohio may believe that they will not face penalties from use of marijuana that complies with state law but must be aware that this may not be the case under the federal law. The full scope of the impact of this change in law has yet to be seen given the delay in implementing the process for sale and use of medical marijuana in Ohio, but the potential consequences cannot be ignored.