Ohio is one of six states that have legal tests in place to determine if a driver is impaired by marijuana – but what do these tests really tell us? Not much, according to a recent study commissioned by the American Auto Association (AAA), the nation’s largest automobile club. According to their study it is not possible to set a simple blood-test threshold for THC (the chemical responsible for marijuana’s psychological effects). They insist that the tests have no scientific basis at all.
Determining whether someone is impaired by marijuana is far more complex than the simple tests that have been developed for alcohol. According to AAA’s CEO Marshall Doney, “In the case of marijuana, this approach is flawed and not supported by scientific data.”
Marijuana is not metabolized by the body in the same way as alcohol – there is no science that shows that drivers become impaired when their blood reaches a specific level of THC. It is possible for some drivers to remain unimpaired with relatively high levels of THC in their system. Others drivers with lower levels of THC in their system may be entirely impaired behind the wheel – and this inconsistency seriously discredits any universal THC standards for impairment.
A lot depends on the individual when it comes to marijuana. THC persists in the blood of frequent marijuana users long after use, while it dissipates more rapidly among occasional users. The current tests in place can only tell us if a driver has merely used the drug at some point – the presence of THC’s metabolites can linger in the body weeks after use. This could lead to the inappropriate conviction of drivers who are otherwise operating their vehicle safely. Further, the body processes active THC very quickly, so a driver may very well fall below the legal threshold before a blood test is administered.
Exactly how dangerous is driving under the influence of marijuana? It is about as dangerous as driving with a “noisy child in the back of the car,” according to Mark A. R. Kleiman, an NYU professor and specialist in issues involving drugs and criminal policy. By comparison, driving while using a hands-free cellphone quadruples the risk of an accident. Kleiman also noted that the average alcohol content in drunk driving cases renders you 15 times more likely to crash your car.
According to AAA – motorists are being convicted of driving under the influence of marijuana based on what seem to be arbitrary state standards that have no connection to whether the driver was actually impaired.
Yesterday the Ohio General Assembly completed its work on HB 523 by passing the final version of the bill to legalize medical marijuana in Ohio. The bill is now in front of Governor John Kasich, who has 10 days from passage to act on it. Should Governor Kasich not sign it, the bill would still become law and take effect 90 days after the Governor’s signature (or 90 days after the 10th day if he does not sign, but also does not veto the legislation). When reached for comment, Kasich spokesman Joe Andrews would not confirm that Governor Kasich would sign the bill, and only told Jackie Borchardt with Cleveland.com that “[h]e’s said if we need it and we got a good bill he’d be OK with it[.]” In the past, however, Kasich has signaled support for medical marijuana.
HB 523 allows for patients suffering from a number of conditions to use and possess a 90-day supply of medical cannabis in various forms, but there is a prohibition on smoking cannabis. The list of conditions includes:
Ohioans can submit petitions to the State Medical Board to include additional conditions later on. The final version passed by the General Assembly does have some differences from the substitute bill offered by Senator Burke during Senate Committee hearings. For example, the Committee modified the definition of eligible “pain” to include that which is either chronic and severe, or intractable — the prior version required pain to be chronic, severe and intractable, which would greatly limit the number of eligible patients. Second, the Committee removed the requirement for pharmacists to be present in dispensaries. Finally, the legislation splits the regulatory responsibility for the medical cannabis industry among three distinct agencies:
The Medical Marijuana Advisory Committee will recommend rules to these three agencies, and Ohio’s medical cannabis industry will be up and running within 2 years of the legislation’s effective date. For the full text of HB 523 as passed by the Ohio Senate, click here.
To be sure, this is not a perfect bill. It does not go as far as many advocates (including myself) had hoped. Among other things, the list of qualifying conditions is too restrictive, it gives too much unchecked authority to unaccountable political appointees, and the requirement that patients only possess a “90 day supply” of their medicine seems overly burdensome, especially considering patients who will likely have trouble making it out of their homes.
The real test begins once the three regulatory agencies begin writing the regulations. Will they allow innovation, entrepreneurship, and a vibrant industry that will provide safe and reliable access to cannabis for Ohio patients? Or will Ohio be like New York, with a system allowing for only a handful of dispensaries and a small number of registered patients?
It may very well be that the Ohioans for Medical Marijuana ballot initiative provides the best opportunity for Ohio patients to truly benefit from medical cannabis. HB 523 may, as critics argue, simply be too restrictive. But there is no real doubt that HB 523 is a step forward for Ohio patients. If you are somebody who has advocated for safe medical marijuana in Ohio for decades, then rejoice because your tireless efforts have borne fruit. But don’t celebrate too long, because the real fight is just beginning.
Stay tuned for deep dives into HB 523 and the rule making process going forward, as well as the progress for the Ohioans for Medical Marijuana ballot initiative.
In the wake of a medical marijuana bill clearing the General Assembly, a discussion of policy can begin to transition into a discussion of science. The legitimacy of cannabis as a pharmaceutical has created controversy for decades – this is thanks in part to state and federal regulations that make it extremely difficult to conduct clinical studies. However, with Ohio’s impending stamp of approval, it is anticipated that marijuana researchers in the state will be put on a longer leash. As a result, people can begin to look to the possible benefits of medical cannabis as a legitimate alternative to more traditional options.
Despite the strain to acquire clinical data on marijuana, there is a lot we do know. Several biological studies indicate that marijuana could potentially aid symptoms in a variety of medical conditions, ranging from epilepsy to cancer. Just a few of the potential benefits of cannabis include:
Continued research by scientists, doctors, and patients will explore the medicinal and therapeutic potential of pot, but the results thus far provide exciting prospects.
Newsweek, “Strong Medicine” p. 11-13
Today I had the opportunity to offer testimony on H.B. 523 to the Ohio Senate Government Oversight and Reform Committee, which is considering the medical marijuana bill passed by the Ohio House last week.
My testimony focused on the need for clarity as to precisely how (and how many) licenses will be granted by the State. Last year Ohioans rejected ResponsibleOhio’s cartel not because they opposed legalizing medical cannabis – in fact, current Ohio polling shows 90% of Ohioans favor it – but because they opposed the consolidation of market power in favor of 10 wealth investors. I am concerned that without sufficient direction from the Ohio General Assembly, the entity charged with awarding medical cannabis licenses will restrict the market so that we arrive at a similar level of consolidation.
Ohio’s medical cannabis industry is estimated to generate $100 million in annual sales, and a market of that size will function best when it is open to competition. Top-down planning does not work in any segment of the economy, and medical cannabis is no different. Over-regulation and market restriction will turn away entrepreneurs and innovators, and leave Ohio patients with poor access to the medicine they need. Consequently, I asked the General Assembly to ensure that applicants for medical cannabis licenses are judged by their own merit and the benefit they can provide to Ohio patients, as opposed to arbitrary restrictions from political appointees.
A version of my written testimony can be read by clicking here. (Full disclosure: I cleaned up a typo from the version submitted to the Committee. I would fire my copy editor for the mistake, but (a) he works for free, and (b) he’s me.)
In other news, Senator David Burke offered a substitute bill making a number of changes to the bill sent from the House. Here are some of the most notable changes:
There are some improvements in these amendments (the affirmative defense, reducing the timeline to license cannabis cultivators) but there are also some disappointing changes (removing the program to assist low-income Ohioans/veterans and offering a restrictive definition of “pain”). I am hopeful that the General Assembly will correct these issues as they continue to debate the bill.
All in all, this bill is an improvement over the current prohibition on medical cannabis in Ohio, but there are still items that should be addressed to ensure that Ohio’s medical cannabis industry is an open marketplace that will truly benefit Ohio’s patients. I’ll follow process of the medical marijuana bill as it continues to move through the General Assembly and keep you informed of all the latest developments in Ohio marijuana law.
Correction: an earlier version of this post indicated that a physician was necessary at the dispensaries at all times. That was a typo (again with the copy editor). The substitute bill requires a pharmacist to be present at the dispensaries.
It’s official – Ohio is on its way to becoming the 25th state to legalize medical marijuana. Today, May 10th 2016, the Ohio House approved a bill which allows for the use of marijuana in patients with qualifying medical conditions and a doctor’s recommendation. The legislation (House Bill 523) passed with a 71-26 vote. Now it heads to the Senate where it is expected to be approved quickly and on the governor’s desk by June. The bill is light on specifics, as it outsources much of the industry regulation to a nine-member commission that would have two years to write industry rules before qualifying patients can legally possess cannabis.
The bottom line: If you have a qualifying medical condition, an Ohio-licensed physician can recommend that you use marijuana for your symptoms. On top of that, if you are a parent or a caregiver you would not be arrested or lose custody of your children for using your doctor prescribed cannabis. Attorneys and other professionals would not be disciplined for providing services to cannabis clients. Further, this bill would urge the federal government to reschedule marijuana from schedule I to schedule II – a change that would catalyze clinical cannabis research.
But time to come back down to Earth for a moment – there are a few caveats in this bill to be mindful of. Smoking marijuana is still a no-go – your doctor would have to recommend an alternative method, like vaping, to consume cannabis. You are also not permitted to grow your own marijuana plants – the state would have to issue licenses for growing and selling the drug. And employers in Ohio retain the right to maintain a cannabis-free workplace. Patients using medical marijuana (even properly under state law) are subject to termination and would be rendered ineligible for unemployment compensation if terminated.
And Ohioans for Medical Marijuana is not standing down in its attempt to put a ballot initiative in front of Ohio voters this November. “It’s a shame lawmakers couldn’t have made history with a vote on a substantive and meaningful medical marijuana bill,” said Aaron Marshall, spokesman for Ohioans for Medical Marijuana. “Today’s vote will only bring false hope and empty promises to Ohioans suffering from debilitating conditions who need medical marijuana.” Marshall noted that the ballot initiative would allow for immediate use by qualifying patients through an affirmative defense and home grow clause.
All things considered – Ohio took a step forward today. But one has to wonder whether our elected officials will go far enough and provide Ohio with a well-regulated and well-functioning cannabis industry.
By mid-year the Drug Enforcement Administration (DEA) plans to reconsider marijuana’s classification as a Schedule I narcotic. In an April letter to several U.S senators, federal officials wrote that they hope to reach a “final determination” on rescheduling the drug – a decision that could be a defining moment for those involved in the legal marijuana industry. Schedule I is the most restrictive of the five ranks issued by the DEA. It is reserved for substances that have the highest potential for abuse and “no currently accepted medical use in the United States”. Graded alongside heroine and LSD, the DEA considers pot a dangerous drug with zero medicinal value.
The rescheduling of cannabis is necessary for a whole host of reasons. For starters, the current schedule I status of marijuana is out of touch with public opinion, scientific research, and state law. It has pitted federal authorities against states that have legalized medical marijuana. The schedule has prompted raids on growers and dispensaries that appear to be operating legally under state law. Seemingly endless bureaucratic hurdles discourage universities, hospitals, and individuals who wish to study marijuana. Most medical research of pot is prohibited. Further, schedule 1 is the only rank of drug that may not be prescribed by a physician under any circumstances under federal law. The denial of cannabis’s legitimacy as a therapeutic substance adversely effects tens of thousands of patients who could be utilizing it. Substances in schedules II and below are still subject to varying degrees of control, but unlike schedule I they benefit from medical recognition, research, testing, and safe manufacture.
People are increasingly skeptical of marijuana’s schedule – but the drug still remains very much illegal under federal law. The DEA has rejected petitions to reschedule cannabis 3 separate times. This is a not only a huge inconvenience for the budding and rapidly expanding marijuana industry, but federal regulation is also hindering much needed clinical testing. The DEA’s impending decision offers a glimmer of hope. Rescheduling certainly will not solve all of the marijuana industry’s problems – but it is a step in the right direction.
Last night Issue 3 tanked at the ballot box by basically at 64-36 margin, much to the disappointment of a few very wealthy people. Despite outspending their opponents almost 16-1, Issue 3 supporters could not manage to convince the Ohio electorate to adopt its vision for cannabis legalization. So what now?
There may very well be other initiatives on the ballot in 2016, including those sponsored by Legalize Ohio 2016 and the Ohio Rights Group. Even ResponsibleOhio has said that it will be back next year with a revamped initiative:
[Ian] James and Jimmy Gould, a former Cincinnati sports agent who co-founded ResponsibleOhio, said Tuesday legalization won’t come from the Statehouse.
Gould said ResponsibleOhio will “put up whatever money we need to put up” to pass a new initiative.
“We will learn from what the voters have said tonight, we will return with a plan for everybody, changes the status quo, takes our streets back, gives medical marijuana to the people who need it and we will do everything we can to have a regulated system so people can benefit from it,” Gould said.
I’m not so sure that Gould’s right about the Ohio General Assembly continuing to cede this territory to the ballot initiative process. As a candidate for the Ohio Senate last year, I called on the legislature to act before we ended up with an inflexible regulatory scheme built into the Ohio Constitution (fast forward to the 33-minute mark). It sounds like that’s just what might happen:
Indeed, the rejection of Issue 3 probably had more to do with how cannabis would be legalized, as opposed to whether it would occur, as Mark Naymik correctly points out on Cleveland.com, stating that last night’s results “should not be seen as a legislative victory or even an honest reflection of Ohio voters’ views on legalization. Issue 3 failed because the ballot issue before voters became more about how to legalize marijuana, not whether or not to legalize it.”
Only time will tell what the future holds for the legalization of cannabis in Ohio, whether for medicinal or recreational use. One thing is for certain, however: the issue is not going away.
UPDATE [ 11/4/15 12:18pm]:
Some additional statements from the Ohio House Speaker Cliff Rosenberger, via Jeremy Pelzer with Northeast Ohio Media Group:
“The war on drugs has been an utter failure. We need to rethink and decriminalize our marijuana laws. We need to rethink how we’re operating the drug war.” – Then-Senate-Candidate Barack Obama, January 2004
“I don’t mind a debate around issues like decriminalization . . . I personally don’t agree that’s a solution to the problem.” – President Obama, April 2012
When President Obama was elected in 2008, many people believed our country was headed in a new direction. Candidate Obama campaigned on (besides economic issues) ending the Iraq War, closing Guantanamo Bay, immigration reform, repealing the PATRIOT Act, and taking a more sensible approach to drug policy. He said it “makes no sense” to raid patients who use marijuana for medical use. He also said that the federal government wouldn’t waste resources on enforcing federal laws against individuals compliant with state marijuana laws. As Jacob Sullum from Reason Magazine wrote in its October 2011 issue:
“The policy is to go after those people who violate both federal and state law,” Holder declared during a March 2009 session with reporters in Washington. “Given the limited resources that we have,” he said during a visit to Albuquerque three months later, the Justice Department would focus on “large traffickers,” not “organizations that are [distributing marijuana] in a way that is consistent with state law.”
Almost four years later, we are still at 8%+ unemployment, gas is hovering around $3.90 a gallon, the War is ending on the timetable established by the Bush administration, the PATRIOT Act was extended, Guantanamo Bay is still open, the US deported more undocumented workers in 2011 than ever before, and the drug war is humming along quite nicely. As an example, the DEA recently raided Oaksterdam University, the so-called “Princeton of Pot” as part of an on-going criminal investigation. Richard Lee, the Oaksterdam’s founder, believes it may have something to do with the fact that it wasn’t compliant with the IRS’s decision to disallow medical marijuana dispensaries from deducting business expenses. Medical marijuana raids have been more frequent under Obama than under Bush, when there were about 200 over eight years.
With all of the talk about the Administration’s focus on treatment and prevention, as opposed to enforcement, the funding levels for the DEA have largely remained unchanged since Bill Clinton was in office: roughly 40 percent for programs aimed at curbing demand and treating addicts and 60 percent for enforcing anti-drug laws.
And this comes at a time when foreign leaders are becoming more outspoken about the misguided drug war, especially those leaders in Central and South America who have been hit hardest by cartel violence. At the Summit of the Americas, Colombian President Juan Manuel Santos said:
“In spite of all the efforts, the illicit drug business is still buoyant, drug addiction in all countries is a serious public health issue, and drug trafficking is still the main provider of funding for violence and terrorism . . . [an] in-depth discussion around this topic is needed, without any biases or dogmas, taking into consideration the different scenarios and possible alternatives to more effectively face this challenge.”
In the end, the past four years of the Obama Administration’s drug policy has been a disappointment to many, especially considering the President’s statements prior to coming into office. There are those who fear an Obama second term, worried that he will suddenly unveil his vastly liberal agenda in an attempt to transform American society, despite all evidence to the contrary. When it comes to the drug war, though, that may be our only shot.
With the news that there are two medical marijuana initiatives currently collecting signatures for inclusion on the Ohio ballot in November, I thought it might be a good idea to examine some of the science behind medical marijuana. This is certainly not a medical journal, and my goal is to make some of the scientific and legal aspects of medical marijuana as simple as I can — both for my benefit and the reader’s. None of this, of course, is medical advice — I’m not a doctor. Talk to your doctor about your specific treatment options.
Unfortunately, there has not been much research done on medical marijuana, at least not at the level that would be appropriate for some other prescription drugs. This is fora few reasons: (1) it’s hard for researchers to procure the amount of marijuana they need to conduct this research, given the plant’s legal status; (2) it’s hard for researchers to get the funding they need to complete the studies; (3) it’s hard to find a plant with the consistent chemical makeup; and (4) patient responses regarding pain alleviation may be clouded by the euphoria, or “high,” that may result from using medical marijuana.
However, there are certain things that we do know. To start, the main reason for using marijuana as medicine is its cannabinoids — the group of chemicals that causes the physiological effects when a person uses the drug. These cannabinoids can also be found in other animals or plants or made synthetically. The one that has everybody talking is known as THC (tetrahydrocannabinol), since it is the most psychoactive of the bunch. THC is responsible for the resulting “high” after marijuana use.
There are other active cannabinoids, though, that have different effects. Some are responsible for suppressing a person’s immune system (known as immunosuppressive cannabinoids). Suppressing an immune system sounds dangerous, but in some circumstances it can be beneficial. For example, patients with multiple sclerosis have an immune system that attacks their own bodies. For those patients, a suppressed immune system may be just what the doctor ordered.
Medical marijuana can also be used to combat some of the nausea and vomiting associated with chemotherapy, as was recognized by the Institute of Medicine. In fact, there are some drugs on the market now that make use of the anti-nausea cannabinoids, like Marinol, Cesamet, Zofran, and Emend. These drugs can combat the nausea and vomiting without producing the high associated with marijuana use. Unfortunately, no tests exist that compare the effectiveness of marijuana to the modern anti-nausea drugs like Zofran and Emend.
The fact that the modern drugs don’t have the psychoactive effects of marijuana is beneficial when a physician is only trying to treat nausea or vomiting, but we all know those aren’t the only symptoms associated with cancer or chemotherapy. In fact, having cancer can cause a person to experience great anxiety or dread — normally treated by anti-anxiety benzodiazepines like Xanax or Valium. However, the euphoric high experienced when using marijuana can therapeutic in that it helps to relieve that same anxiety or dread. Many patients might prefer using one drug (marijuana) to treat multiple symptoms, rather than being prescribed multiple drugs to treat multiple symptoms.
After treatment has ended, a patient may become dependent on the drug used to treat his or her symptoms. That patient is likely to experience more severe withdrawal symptoms after using benzodiazepines than would be the case if the patient was treated with marijuana. Withdrawal symptoms associated with marijuana-dependent individuals may last 1-3 weeks while withdrawal symptoms may last for months after stopping use of benzodiazepines.
Marijuana is currently listed as a Schedule I drug under Ohio and federal law, meaning it has a high potential for abuse without any recognized medical benefit. I have not read any studies regarding the likelihood of dependency or abuse of marijuana compared with benzodiazepines. If you are aware of studies of that nature, I would certainly be interested in reading them or getting your take on the results.
In my mind, the question is no longer whether marijuana has a medical benefit. Rather, researchers are attempting to determine the extent of those benefits. These are questions better answered by doctors, patients and scientists — not legislators or bureaucrats.
I relied heavily on the article “The Cannabis Conundrum: Medication v. Regulation,” written by Moira Gibbons. It was published in the ABA Health Law Section: The Health Lawyer in December of 2011. And yes, I’ve noticed that the title of her article is similar to the symposium the Journal of Law & Health sponsored in March 2011. Apparently attorneys can’t avoid alliteration. (see what I did there?)
I’d love to hear your comments on medical marijuana, so be sure to post them below.
The symposium featured Ohio State Representative Kenny Yuko, Cleveland-Marshall College of Law professor Stephen Lazarus, Cleveland Clinic physician Mellar Davis, Michigan physician Jamie Hall, and Michael Cohill, who was involved in drafting the Ohio Medical Cannabis Amendment ballot initiative for inclusion on the Ohio 2012 ballot. The participants discussed the implications of legalizing cannabis in Ohio, as well as the effects of Michigan’s Medical Marijuana Act and its impact in that state.
Ohio 7th District State Representative Kenny Yuko introduced House Bill 478, which would legalize in Ohio the use, growth and dispensing of medical cannabis for persons suffering from debilitating conditions including cancer, glaucoma, multiple sclerosis and Crohn’s disease. House Bill 478 is not unlike other medical cannabis laws passed either through legislation or by referendum around the country. Medical cannabis is legal in Michigan, which provides an intriguing opportunity to see how medical cannabis legislation works in the Midwest.
Given the incessant coverage of the 2012 Presidential primary contest (can you believe Mitt Romney’s tax rate?!), it’s no wonder that many Ohioans aren’t aware that medical cannabis could be on the November 2012 ballot in Ohio. That’s right. In November, Buckeyes across the state may get the chance to legalize medical marijuana.
There are two ballot initiatives out there currently: (1) the Ohio Alternative Treatment Amendment, and (2) The Ohio Medical Cannabis Amendment. Both ballot initiatives have obtained the required approval from state authorities to begin gathering signatures. The amendments need 385,245 valid signatures of registered voters to qualify for the ballot.
If either of these ballot initiatives pass, Ohio would become one of 16 states, plus the District of Columbia, to have some sort of legalized medical cannabis laws.
The Ohio Alternative Treatment Amendment, proposed by the Ohio Patients Network would allow doctors to recommend medical cannabis to adult patients with a qualifying medical condition. Under this amendment, patients could possess up to 3.5 ounces of cannabis and cultivate up to 12 plants. Regulation of medical cannabis would fall largely under the auspice of the Ohio Department of Health, although local zoning authorities would play a role in determining where “safe access centers” (dispensaries) could locate.
The Amendment also prohibits the centers from being located within 1000 feet of certain buildings, such as churches or schools. It would not be legal to operate a vehicle under the influence of cannabis, nor would employers be required to allow employees to use cannabis on at the workplace or allow employees to work while under the influence of cannabis. However, the employer would have to demonstrate that the employee was “impaired” if he or she claimed the employee was under the influence.
Notably, no health insurer, including the state of Ohio, would be required to reimburse a medical cannabis patient for the costs associated with using or obtaining medical cannabis.
The OATA is supported by the National Organization for Reform of Marijuana Laws (NORML).
The Ohio Medical Cannabis Amendment takes a different approach than the OATA, mentioned above. Rather than prescribe a regulatory scheme like the OATA, the OMCA takes a “rights” approach to medical cannabis, including among an Ohioan’s rights the right to “be eligible to use cannabis as medicine as a result of a diagnosed debilitating medical condition.” The OMCA would establish the Ohio Commission of Cannabis Control to regulate, fairly exclusively, medical cannabis in Ohio.
Because the OMCA would turn over the “nitty gritty” affairs of medical cannabis regulation to the new Ohio Commission of Cannabis Control, the amendment language does not provide much detail regarding exactly how medical cannabis would be regulated in Ohio. However, the OMCA does state that it does not authorize the operation of a motor vehicle when under the influence of cannabis, nor does it authorize the use of cannabis when doing so would constitute negligence or professional malpractice (limitations also present in the OATA).
It will be interesting to see what happens with these amendments, whether either obtains the necessary amount of signatures to appear on the ballot, or whether either passes in November. In 2009, a University of Cincinnati poll found that 73% of Ohioans would support legalizing medical cannabis in Ohio.