Category Archives: Medical Marijuana

BIG NEWS: DOJ recommends marijuana policy status quo over federal crackdown

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Shortly after being confirmed as Attorney General, Jeff Sessions created various task forces to review Obama-era DOJ policies. In late July he received a report back from the task force evaluating federal marijuana enforcement policy, and the Associated Press is reporting that the news is good for state-legal marijuana businesses:

The Task Force on Crime Reduction and Public Safety, a group of prosecutors and federal law enforcement officials, has come up with no new policy recommendations to advance the attorney general’s aggressively anti-marijuana views. The group’s report largely reiterates the current Justice Department policy on marijuana.

It encourages officials to keep studying whether to change or rescind the Obama administration’s more hands-off approach to enforcement — a stance that has allowed the nation’s experiment with legal pot to flourish. The report was not slated to be released publicly, but portions were obtained by the AP.

While this report does not bind the DOJ to any particular policy stance, it is in line with recent comments that have come from Jeff Sessions. Indeed, he said that the 2013 Cole Memo was “valid,” while noting he may have some “different ideas . . . in addition to that, but essentially we’re not able to go into a state and pick up the work that the police and sheriffs have been doing for decades.”

In a meeting with Colorado Governor John Hickenlooper earlier this year, Sessions appeared open to maintaining the “hands off” approach the DOJ has taken in legal states. “He’s obviously reviewing the Cole (Memo),” Hickenlooper said. “(They’re working on) a version of that that makes sense for this administration. We’ll have to see how far they go.” Doug Friednash, Hickenlooper’s chief-of-staff, told The Denver Post that Sessions said the Cole Memo was “not too far from good policy.” 

Now that’s all good news, but the DOJ has also sent letters to Colorado, Oregon, and Washington state officials questioning the efficacy of their state regulatory structures. Washington state officials, for their part, have begun responding to the allegations contained in the letter they received.

The news from the DOJ comes on the heels of a bill introduced by New Jersey Senator (and likely 2020 presidential candidate) Cory Booker that would legalize marijuana. While Booker’s bill is unlikely to get much traction in Congress, it is a sign that legal marijuana could shape up to be a pivotal issue in the 2020 race.

Marijuana policy at the federal and state levels continues to change at seemingly breakneck speed. I’ll be updating this blog more often to keep you all up-to-date on the most recent news. Check back for new posts on Ohio’s proposed districts for Ohio medical marijuana dispensaries, the release of applications for Ohio medical marijuana testing laboratories, information about Ohio’s medical marijuana cultivator applicants, and other marijuana law and policy news.

Finally, later this week I’ll also be sharing some pretty big personal news. So I’ve got that going for me. Which is nice. 

Ohio Marijuana Law Update: cultivator applications, processor rule changes, proposed THC limits, and the ever-shifting federal landscape

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Has it really been more than a month since my last post? Holy cow, we’ve got a lot to cover. Here’s what you need to know about what’s been happening in Ohio’s medical marijuana industry.

Cultivator applications due in June

The biggest news is that the Department of Commerce has finally given us all an indication of when we can expect medical marijuana cultivator applications to be due:

  • The applications will be released in mid-late April;
  • Level II applications will be due in early-mid June;
  • Level I applications will be due in mid-late June.

The Department has scheduled two separate deadlines for applications because it does not know how many applications to expect, and does not want to be overwhelmed at the outset. We should have a much better idea of the hard deadlines once the applications themselves are released.

Interestingly, following the release of the applications later this month, the Department will hold a webinar explaining the applications, followed by two 1-week periods in which the public can submit questions for clarification on the application. The webinar, as well as answers to any questions, will all be posted on the Medical Marijuana Control Program website.

We do not know much about the substance of the application yet, except that it will contain two main sections:

  • Section 1: Applicants will be identifiable and will address mandatory requirements (presumably the required liquidity, compliance with tax laws, background checks, etc.). This Section will be scored on a pass/fail basis.
  • Section 2: Applicants will be anonymous and will address the remaining portions of the application. This Section will be scored based on the rubric prepared by the Department. This Section will be scored by three teams, each identifying specific parts of the application:
    • Operations & Quality Assurance Plans;
    • Financial & Business Plans; and
    • Security Plans.

Also, the Department of Commerce has totally eliminated the designated territories referenced in the last post, so it will judge all of the cultivator applicants in each Level against one another statewide. This is a welcome change, in my opinion. You can view the latest medical marijuana cultivator rules by clicking here.

The financial requirements for processors have been amended

The Department also has provided some information regarding updates to the rules for medical marijuana processors. To begin, the designated territories have been removed (as was the case for cultivators), although the total number of medical marijuana processors to be licensed in Ohio remains at 40.

There have also been changes to the financial requirements for processors:

  • The liquid capital requirement for processors is $250,000, although if the applicant already holds a cultiavator provisional license and will be located within the same facility as the cultivator, then the liquidity requirement is $100,000;
  • The escrow/surety bond requirements have been reduced from $500,000 to $250,000.

Various other changes have been made to the processor rules, including changes to non-solvent extraction methods, the ability to acquire expired medical marijuana from dispensaries, and packaging/labeling requirements. This updated draft will now be submitted to the Common Sense Initiative and, accordingly, there will be further opportunity for public comment. The updated rules for processors have not yet been posted publicly, but when they are they can be viewed by clicking here.

The Board of Pharmacy will limit medical marijuana possession based on THC content

The State Board of Pharmacy has taken an unusual step of limiting the statutorily-mandated 90-day supply based on THC content. Here are the limits of medical marijuana that may be possessed by Ohio patients in each 90-day period as initially proposed by the Board:


Note: for medical marijuana products the supply is limited based THC content, not the overall weight of the product. You can review the Board’s reasoning by clicking here. Read the full draft of form and method rules by clicking here.

Congress signals a willingness to consider marijuana reform while the Trump administration signals a willingness to engage in stricter enforcement

We are all watching Attorney General Jeff Sessions, Press Secretary Sean Spicer, and everyone else in the Trump administration to try to figure out how they will approach state-legal marijuana markets throughout the country. Initially, Sean Spicer warned that we might see stepped-up enforcement, although he also indicated that the administration may take different approaches for adult-use and medical marijuana markets.

Jeff Sessions has also said that the 2013 Cole Memo was “valid,” and recognized that the Department of Justice may not have the resources to start prosecuting state-legal operators. That being said, he’s kept up his drug warrior rhetoric in public.

Most recently, a DOJ task force has been formed to address crime reduction and public safety. Part of their job will be to review policies relating to “charging, sentencing, and marijuana” to “ensure consistency with the Department’s overall strategy on reducing violent crime and with Administration goals and priorities.”

Here’s some unsolicited advice for Attorney General Sessions and his Task Force: if you want to reduce violent crime, then leave states alone to regulate marijuana to eliminate the black market, increase transparency and safety, and take money away from dangerous cartels.

Meanwhile, over in Congress there have been several bills introduced in both the House and the Senate — by both Republicans and Democrats — that would reform federal marijuana laws in various ways.  Marijuana Business Daily provides a good summary of some of the proposed legislation that has been introduced, and their would-be impact on marijuana businesses:

  • H.R. 331: States’ Medical Marijuana Property Rights Act;
  • H.R. 714: Legitimate Use of Medicinal Marijuana Act;
  • H.R. 715: Compassionate Access Act;
  • H.R. 975: Respect State Marijuana Laws Act;
  • H.R. 1227: Ending Federal Marijuana Prohibition Act;
  • S.776: Marijuana Revenue and Regulation Act;
  • S. 777: Small Business Tax Equity Act;
  • S. 780: Responsibly Addressing the Marijuana Policy Gap Act;
  • H.R. 1810: Small Business Tax Equity Act;
  • H.R. 1820: Veterans Equal Access Act;
  • H.R. 1823: Marijuana Revenue and Regulation Act;
  • H.R. 1824: Responsibly Addressing the Marijuana Policy Gap Act; and
  • H.R. 1841: Regulate Marijuana Like Alcohol Act.

While passage of these bills may be a pipe dream, this could signal an increasing likelihood of reform on the federal level sometime in the next few years.

Join me at the Marijuana Business Conference & Expo in Washington D.C.

Last but not least, come out to the Spring Marijuana Business Conference & Expo sponsored by Marijuana Business Daily! The conference will take place from May 16-19 in Washington, D.C., and takes place during the same time as the National Cannabis Industry Association Lobby Days. The Conference will feature over 60 presenters, 275 exhibitors, and attendance is expected to top 3,500 cannabis industry professionals. Believe me when I tell you that this is a terrific conference that you do not want to miss.

I will be speaking about Ohio’s market on the Friday of the Conference, so you know there will be some information directly applicable to prospective Ohio medical marijuana cultivators, processors, and dispensary owners. Message me if you would like a discount code to get an additional $50 off of your admission!

As always, if you are interested in becoming involved in Ohio’s medical marijuana industry, don’t hesitate to give me a call at (216) 566-8200. 

Join me at the Ohio Canna-Business Seminar!

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This Saturday, February 25, I will be speaking on a panel at the MPP Ohio Canna-Business Seminar in Columbus. My firm, Seeley, Savidge, Ebert & Gourash Co., LPA, is also one of the event’s sponsors.

MPP promises “a deep dive into Ohio’s emerging medical cannabis program in Columbus.” The Seminar will feature policy and industry experts, as well as Ohio medical marijuana regulators. Topics covered will include best practices for operating in Ohio’s medical marijuana market, accounting, tax, and liability issues.

The Seminar will be hosted at the Sheraton Columbus Hotel at Capitol Square, located at 75 East State Street, Columbus, OH, 43215. Tickets are $600 each, two for $1,000, or three for $1,300. The seminar will run from 10 a.m. to 5:30 p.m. and will include a boxed lunch. But, shoot me an email at tharen@sseg-law.com and I’ll give you a promotional code for a discount on your ticket!

Click here to register for the event. See you there!

Department of Commerce announced cultivator territories and draft processor rules, Board of Pharmacy hints at dispensary rule changes

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Ohio medical marijuana cultivator territories announced

The Department of Commerce recently identified how it will designate territories for Ohio medical marijuana cultivators. By way of background, the current draft of Section 3796:2-1-01(A) provides for up to three Level I cultivators and three Level II cultivators in each of 4 designated territories. This is a change from the original drafts where the Department was to split up Ohio into 12 designated territories.

The Department announced recently precisely how it intends to divide the state for purposes of cultivator licenses, and the result ends up with Northeast Ohio’s quadrant including what will likely be 4 of the more competitive counties in the state for medical marijuana cultivation: Cuyahoga, Summit, Mahoning, and Lorain. Here is an image from the Department’s announcement:


This design runs the real risk of making some quadrants so competitive that well-qualified applicants are shut out based solely on the number of applicants in that territory. In other words, the 5th best Level I applicant in Northeast Ohio may very well be a more qualified applicant than the top applicant in Northwest Ohio, but there will only be 3 Level I licenses awarded in Northeast Ohio. Furthermore, such large territories may encourage consolidation of applicants in closer proximity, as opposed to having cultivators more widely disbursed as would be the case if Ohio had a larger number of territories.

It will be interesting to see if this map changes at all as we continue with the rule-making process, and do not be surprised to see some border counties transition into neighboring territories (for instance, Lorain could very well end up as part of the Northwest quadrant).

Changes to Ohio medical marijuana dispensary rules

On January 27, the Ohio Medical Marijuana Advisory Board met and received an update from the Board of Pharmacy on the comments received relative to the proposed dispensary rules. Notably, the Board referenced three major changes to its initial draft rules:

  1. The number of licensed dispensaries will be increased from 40 to 60 statewide;
  2. The $80,000 biennial fee to renew a dispensary license will be reduced (although we do not know what the reduced fee will be); and
  3. The Board will remove the requirement of having a “clinical director” either on-site or available by phone during hours of operation (I discussed the clinical director previously).

New dispensary rules have not yet been issued, but rest assured I will post an update when they are.

Proposed Ohio medical marijuana processor rules

The Department of Commerce also proposed its initial set of draft rules for Ohio medical marijuana processors. The first round of public comments are being accepted through close of business on February 10, 2017. Here are the highlights:

  1. The Department will license 40 medical marijuana processors, with 10 processors in a given territory (my educated guess is that the Department will utilize the same territories for processors as it does for cultivators);
  2. Once an applicant is awarded a provisional license, the applicant will have six months to get its facility up and running before it can receive its certificate of operation;
  3. Processors must either maintain a surety bond in the amount of $750,000 or an escrow account in that amount, and must also demonstrate that it has $250,000 in liquid assets; and
  4. Processor application fees will be $10,000 to apply; $90,000 to obtain a certificate of operation; and $100,000 annually to renew a processor license.

Check out the latest draft processor rules by clicking here.

We know from the draft cultivator rules that Ohio will award “plant-only processor” licenses to cultivators who wish to sell plant material directly to dispensaries, although those entities will have to meet more stringent packaging and labeling requirements than other cultivators. These plant-only processor licenses will cost $5,000 for Level I cultivators and $500 for Level II cultivators.

Stay tuned as Ohio continues its rule-making process. And, in the event you are interested in getting involved in Ohio’s medical marijuana industry (whether as a cultivator, processor,  or dispensary operator), don’t hesitate to contact us at (216) 566-8200 for a free consultation to discuss your plans.

Medical Marijuana in Ohio in 2017

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Hi everyone – it’s been a little while since I’ve posted here. Our family moved, work got busier than anticipated (which is a good thing), and all of that occurred right smack in the middle of the holiday season. But fear not, the Ohio Marijuana Law Blog is back in full swing to keep you updated on all of the latest news on medical cannabis in the Buckeye State.

Ohio continues the medical marijuana rule-making process

The rules for Ohio medical marijuana cultivators will be finalized in May, with the rules for medical marijuana dispensaries, processors, testing laboratories, and recommending physicians finalized in September. The Ohio cultivator rules have been submitted to the Common Sense Initiative, and public comment on the rules are being accepted through this Friday, January 27. Ohio dispensary rules are in their initial draft, although this round of public comments closed on January 13 – there will be other opportunities to provide input.

Some highlights from these latest drafts:

  • The number of Level II cultivator licenses has increased to 12, and the “marijuana cultivation areas” of both categories has increased: Level I cultivators can have a cultivation area of 25,000 square feet, while Level II cultivators are limited to a cultivation area of 6,000 square feet.
  • If approved by the Department of Commerce, cultivators can expand their facilities not more than twice, each time up to doubling their original size – meaning that Level I cultivators could potentially obtain 75,000 square feet of cultivation area, while Level II cultivators could potentially obtain 9,000 square feet of cultivation area.
  • Ohio would license up to 40 medical marijuana dispensaries, dispersed throughout the state in yet-to-be-defined geographic territories.
  • The Board of Pharmacy would require dispensaries to have a “clinical director” either on-premises or available by phone during all hours that dispensaries are operating. A “clinical director” can be either a pharmacist, physician, physician assistant, certified nurse practitioner, or clinical nurse specialist.

I’ll cover each of these drafts in greater detail here in the coming days. It is interesting to note that a draft of House Bill 523 originally required a pharmacist to be present in medical marijuana dispensaries, although that requirement was removed prior to the law going up for a vote. Now it seems the Board of Pharmacy is seeking to re-insert a similar requirement.

The United States Senate Has Yet to Confirm Attorney General Nominee Jeff Sessions

Alabama Senator Jeff Sessions, whom President Donald Trump has nominated to be his next Attorney General, is waiting on confirmation from the United States Senate. His confirmation hearings generally went off without a hitch, and when asked about legal marijuana, Sessions would not commit to “not enforcing federal law,” although he acknowledged the problem with scarce federal resources.

As Fortune reports:

On Tuesday, Sessions was not quite as emphatic on the issue as he has been in the past. In reference to the guidelines issued by the Justice Department in 2013 that effectively left marijuana law enforcement up to individual states, Sessions told Sen. Leahy “some of them are truly valuable in evaluating cases, but, fundamentally, the criticism I think that is legitimate is that [the guidelines] may not have been followed.” Sessions went on to say he would need to use “good judgment” when deciding how to enforce federal marijuana laws, should he be sworn in as Attorney General, adding “I know it won’t be an easy decision, but I will try to do my duty in a fair and just way.”

Following his confirmation hearings, Sessions provided written responses that again addressed legal marijuana (which are conveniently packaged in Tom Angell’s new daily marijuana newsletter, which you should all subscribe to):

  • “While I am generally familiar with the Cole memorandum, I am not privy to any internal Department of Justice data regarding the effectiveness and value of the policies contained within that memorandum… I will certainly review and evaluate those policies, including the original justifications for the memorandum, as well as any relevant data and how circumstances may have changed or how they may change in the future.”
  • “I will not commit to never enforcing Federal law. Whether an arrest and investigation of an individual who may be violating the law is appropriate is a determination made in individual cases based on the sometimes unique circumstances surrounding those cases, as well as the resources available at the time.”
  • A recent federal court ruling that a Congressional rider prevents the Justice Department from going after people complying with state medical marijuana laws “is relatively recent, and I am not familiar with how other courts may have interpreted the relevant appropriations language or the Ninth Circuit’s opinion. As an emerging issue, that is one that will need to be closely evaluated in light of all relevant law and facts… I will conduct such a review. Of course, medical marijuana use is a small part of the growing commercial marijuana industry.”
  • On “good people don’t smoke marijuana”: “My words have been grossly mischaracterized and taken out of context… I was discussing the value of treating people for using dangerous and illegal drugs like marijuana, and the context in which treatment is successful.”
  • “I echo Attorney General Lynch’s comments [on marijuana being illegal], and commit, as she did, to enforcing federal law with respect to marijuana, although the exact balance of enforcement priorities is an ever-changing determination based on the circumstances and the resources available at the time.”
  • “I will defer to the American Medical Association and the researchers at the National Institutes of Health and elsewhere about the medical effects of marijuana. Without having studied the relevant regulations in depth, I cannot say whether they may need to be eased in order to advance research; but, I will review this.”

There can be no doubt that Senator Sessions is a marijuana prohibitionist, but I do think it is fair to say that his responses are no worse than those given by President Obama’s Attorney General, Loretta Lynch, during her own confirmation hearings in 2015. She said the following when questioned by Senstor Lindsey Graham:

“Marijuana is still a criminal substance under federal law. And it is still a crime not only to possess, but to distribute under federal law.”

“With respect to the marijuana enforcement laws, it is still the policy of the administration and certainly would be my policy, if confirmed as attorney general, to continue enforcing the marijuana laws, particularly with respect to the money-laundering aspect of it.”

And she also said this when questioned by Senator Sessions:

“Well, senator, I certainly don’t hold [the view that marijuana should be legalized], and don’t agree with that view of marijuana as a substance. I certainly think that the president was speaking from his personal experience and personal opinion — neither of which I am able to share.”

Sessions can rescind the 2013 Cole Memo at a moment’s notice following his confirmation, although there are significant practical and political risks to doing so: more than half the country has legalized some form of medical marijuana and the industry supports thousands of jobs and a significant amount of taxes to cash-strapped states. For some additional context, see this great article over at The Cannabist: “Would he revive the war on drugs? Five myths about Sen. Jeff Sessions.“

It should also be remembered that Donald Trump has previously expressed his support for legal marijuana, including saying that he supported medical marijuana “100 percent.” His new press secretary, Sean Spicer, implied during Sessions’ confirmation hearings that any member of Trump’s cabinet would implement the “Trump agenda:”

Stay tuned as Ohio moves forward with implementing its medical marijuana program over the coming months.

Ohio Department of Commerce Proposes Cultivator Rules: The Highlights

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Earlier this month, the Ohio Department of Commerce issued proposed rules for Ohio cultivators. The proposal was met with significant opposition, not the least of which was the low number of licenses the Department proposed awarding. There is an opportunity for public comment, as outlined below:

  • The initial public comment period ended on November 15 — this was the first opportunity for Ohio citizens to comment on the substance of the proposed cultivator rules.
  • The Ohio Medical Marijuana Control Program is required to prepare a Business Impact Analysis and submit the analysis to the Common Sense Initiative office. The public will have an additional opportunity to offer input on the rules at this time.
  • The Ohio Medical Marijuana Control Program will hold a public hearing between 30-41 days after the rules have been filed with Joint Committee on Agency Rule Review, which cannot happen until the Common Sense Initiative has provided input on the proposed rules. Public testimony will be accepted at this hearing.
  • Finally, the Joint Committee on Agency Rule Review will hold a public hearing addressing a limited number of issues that are within the jurisdiction of the Committee:
    • Do the rules exceed the agency’s statutory authority;
    • Do the rules conflict with an existing rule of that agency or another state agency;
    • Do the rules conflict with legislative intent;
    • Has the rule-making agency prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission (ORC 127.18);
    • Has the rule-making agency met the incorporation by reference standards for a text or other material as stated in ORC sections 121.72, 121.75, or 121.76; and
    • If the rule has an adverse impact on business (ORC 107.52), that the rule-making agency has demonstrated through the business impact analysis (BIA), the Common Sense Initiative Office (CSI) recommendations and the agency’s memorandum of response to the CSI recommendations, that the rule’s regulatory intent justifies its adverse impact on business.

The Department’s proposed rules for Ohio medical marijuana cultivators will significantly affect the supply of medical marijuana in Ohio, as well as the operation of the industry more generally. Below are some highlights (no pun intended) of what the Department has proposed:

  • The Department will issue two tiers of cultivator licenses — 12 Level I licenses capped at 15,000 square feet of marijuana cultivation area, and 6 Level II licenses capped at 1,600 square feet of marijuana cultivation area.
  • Flowering marijuana cannot constitute more than 75% of the marijuana cultivation area.
  • Various felony offenses (for instance, drug offenses under R.C. 2925) will automatically disqualify interested applicants from obtaining medical marijuana licenses, although the Department may grant a hearing to allow applicants with only misdemeanor versions of those offenses to obtain a license.
  • The Department defines (but provides no substantive regulations for) “plant only processors,” which the Department defines as cultivators that have “received a license . . . for the limited purpose of packaging, selling, and delivering finished plant material directly to a licensed dispensary for sale to a patient or caregiver.
  • H.B. 523 allows for Ohio patients to purchase plant material from dispensaries, and the Department proposes defining “plant material” as “the leaves, stems, buds and flowers of the marijuana plant, [not including] seedlings, seeds, clones, stalks, or roots of the plant or the weight of any non-marijuana ingredients combined with marijuana.”
  • Licenses will be split among various designated territories within Ohio, although the Department does not identify what those territories will be.
  • Ohio medical marijuana cultivator license applicants will have to submit applications that include a business plan, an operations plan, a quality assurance plan, a security plan, and a financial plan.
  • Ohio will charge a nonrefundable $20,000 fee to apply for a Level I cultivator license, and a $2,000 nonrefundable fee to apply for a Level II cultivator license.
  • The Department of Commerce will issue provisional licenses to successful applicants, and then the applicant will have 9 months to execute the plans included in their applications. If the applicant can successfully do so, then a “certificate of operation” will be awarded.
  • During the application process, an applicant must demonstrate that real estate is either leased or owned, or that the applicant has the ability to lease or purchase the property where the cultivation facility will be located.
  • Applicants for Level I cultivator licenses will have to show liquid capital in the amount of $500,000, while applicants for Level II cultivator licenses will have to show liquid capital in the amout of $50,000. This means that the applicant will have the ability to liquidate that mount of money within 30 days. 
  • Level I cultivator applicants must have either $2 million in escrow or a $2 million surety bond. Level II cultivator applicants must have either $200,000 in escrow or a $200,000 surety bond.
  • Provisional cultivator licenses are nontransferable, and ownership changes of operating cultivators are subject to approval by the Department.
  • Cultivators must annually renew their certificates of operation. Level I cultivators must pay an annual renewal fee of $200,000, while Level II cultivators must pay an annual renewal fee of $20,000.

These rules are not yet finalized, and this list does not include all of the rules proposed by the Department. There remains an opportunity for public input, and if you are considering applying for an Ohio medical marijuana cultivator license it makes a lot of sense to get involved in the public comment process. The State needs to hear from concerned entrepreneurs and cannabis professionals so that Ohio has a functioning medical marijuana market by the target operational date of September 2018.

Ohio Supreme Court formally adopts Amendment to Rule 1.2, clarifying that Ohio lawyers can advise medical marijuana companies

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Bringing the uproar surrounding attorney representation of Ohio medical marijuana clients largely to an end, on September 20th the Ohio Supreme Court formally adopted an amendment to Prof.Cond.R. 1.2(d). The new Rule 1.d(d) reads:

(d)(1) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law.

(2) A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.

As amended, this rule change would resolve the concerns of many lawyers (including our firm) regarding the representation of clients in the medical marijuana industry. As previously noted here, however, new subsection (d)(2) differs from language used in other states in that it only authorizes attorney assistance with conduct “expressly permitted” under H.B. 523, while also advising about the consequences of federal prohibition. Other states, such as Alaska, clarify that an attorney may assist clients in conduct the lawyer “reasonably believes” is permitted under state law. This important distinction means that Alaska recognize that an attorney’s role is often to make a good faith determination regarding what is (or is not) authorized under existing law.

In Ohio, it is conceivable that a client may ask something like, “The law isn’t clear on whether my proposed conduct is allowable. Research whether it is permitted, and if so, advise me regarding how I can engage in it.” If the lawyer concludes  that the conduct is permitted, but is wrong, the lawyer could (in theory) be subject to discipline because the Rule only authorizes conduct “expressly permitted” — there does not appear to be an allowance for reasonable mistakes as to the scope of the law.

In addition, this change does not address whether the Rules authorize an attorney to use medical marijuana or whether an attorney may own and/or operate a medical marijuana establishment. Those issues continue to be addressed only by the August advisory opinion.

All things in consideration, Ohio lawyers and the Ohio medical marijuana community in general are in a better position than they were a few weeks ago. The Ohio Supreme Court moved astonishingly fast to address this issue, and for that they should be commended. Let’s hope the Department of Commerce and State Board of Pharmacy act as quickly as they draft the industry rules over the coming months.

Read more on this topic on Cleveland.com by clicking here. 

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