Ohio Legislature Can Make Only Limited Changes To Marijuana Law Approved By Voters, Legal Scholar Argues
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As Ohio lawmakers face public pushback over legislation that would make sweeping changes to the state marijuana law approved by voters in 2023, one legal scholar says the state Constitution could ultimately limit how drastic those adjustments could be.
“When you look closely at the text, the structure and the history of the Ohio Constitution’s statutory initiative provision, it strongly suggests that the Constitution places real limits on the General Assembly’s power to alter initiated laws,” Derek Clinger, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, said at a webinar Tuesday.
“Now, to be clear, I don’t think the Constitution completely prohibits the legislature from making changes,” Clinger added, “though I actually think there’s a better argument for that position than for the one that says the lawmakers have complete discretion to change initiatives.”
Clinger’s comments were part of an online talk hosted by Ohio State University law school’s Drug Enforcement and Policy Center, titled (Un)Checked Power of the Ohio General Assembly: Can Legislators Override Voters’ Will on Marijuana Reform? In it, speakers described how legislative efforts this session have sought to undercut many of the provisions passed by voters in the state’s 2023 legalization law, Issue 2.
Advocates have criticized the legislation—SB 56 and its House counterpart, HB 160—as restrictive measures that would undermine the will of voters.
“There’s been an assumption that the General Assembly has the complete discretion to change or even fully repeal the initiative,” Clinger said. But the state Constitution “does not address this scenario in explicit terms,” and state courts “have never actually weighed in on this issue.”
The state Constitution’s section on initiative power is “a reservation of legislative power by the people of Ohio to the people of Ohio,” he asserted. “It did not come from the General Assembly. And the effect is that the General Assembly is in, really, a power-sharing arrangement with the people of Ohio when it comes to lawmaking.”
The Constitution doesn’t say specifically whether lawmakers can amend voter-approved initiatives, though it does spell out a process for the legislature to adopt or offer alternatives to public proposals before a matter goes to voters. It also sets limits, such as around the scope of a proposal—the so-called “single subject” rule—and on certain tax issues.
“What this shows to me is that the framers of the provision knew how to write clear limits on the power,” Clinger explained, “yet they didn’t expressly say that the General Assembly would be free to change or even repeal initiated law after an election.”
In further language about initiatives, the Constitution says that laws “may be passed to facilitate their operation but in no way limiting or restricting either such provisions or the powers herein reserved,” he added.
“This anti-subversion clause seems to most directly address the scenario of whether legislators can amend or repeal voter approved initiatives,” Clinger said. “They can, but only if the change facilitates the initiative without in any way limiting or restricting it.”
Clinger’s interpretation is the subject of a forthcoming Case Western Reserve Law Review article about the constitutional limits on legislative changes to initiatives in Ohio, a version of which was posted online in April.
Another speaker at the webinar, Patrick Higgins, policy council at ACLU of Ohio, said that even some lawmakers have raised concerns that certain pieces of the legislation “might be unconstitutional or unimplementable.”
“But the common refrain in the Statehouse is, ‘It’s called the revised code for a reason. We can make tweaks to it,’” Higgins said.
“I think the message has been resoundingly clear,” he continued: “This is not what voters wanted.”
Already the House Judiciary Committee has taken steps to soften the restrictive bill, SB 56, in response to public pushback. Changes approved at a hearing late last month, for example rolled back some of the strict limits included in a verson of the measure passed by the Senate in February, including a criminal prohibition on sharing marijuana between adults on private property.
Members said at the time that further amendments to the plan were forthcoming.
Karen O’Keefe, director of state policies for the advocacy group Marijuana Policy Project (MPP), said at Tuesday’s webinar that the bill “still has a lot of alarming provisions but is not quite as terrible as the initial proposal.”
“The proposal started out way more extreme in terms of recriminalization, hiking up taxes and removing all the allocations that were included in issue two,” she noted, such as for local governments, social equity and jobs training.
The amended version of the bill, O’Keefe added, has “less recriminalization,” though it would still outlaw marijuana that wasn’t purchased from an Ohio retailer or grown at home, and it would prohibit the sharing of homegrown cannabis between adults.
“If you just couldn’t prove where your cannabis came from, it would open the door to those kind of interrogations,” she said. “You could also only share cannabis that was purchased… People that are helping their neighbors with serious illnesses couldn’t do that anymore, and if they shared more than 20 grams, they’d face a felony for doing so.”
The revised bill also earmarks 25 percent of revenue for local governments—higher than the legislation’s initial 20 percent but lower than the 36 percent allocation approved by voters. And it does away entirely with a voter-approved social equity and jobs program.
As for Clinger’s argument that the changes could be unconstitutional, O’Keefe said she understood that matters such as recriminalization of cannabis conduct or removal of voter-passed funding allocations “are both vulnerable under such an analysis,” but she added that she has “become cynical of some courts in the last decade, few years, so I think it’s important to fight it out with the legislature first.”
Rep. Jamie Callender (R), a longtime supporter of cannabis reform, reassured speakers at a follow-up hearing last week that their concerns were being heard and that further amendments are on the way.
“Thank you all for your participation,” he said. “As a result of that, there was a substitute bill put in last week that addressed a couple of the issues you talk about. And one of the reasons that it is not up for a vote today is we are still negotiating and working on some amendments to address several of the other issues.”
“The very specific issues you addressed have been being worked on or will be addressed in the next week or two,” he continued. “So for all of you that are here testifying, I want to thank you. You’ve made a difference. And it’s going to make a much better product. And I’m optimistic that you may not be perfectly happy, but you’re going to say, ‘You know, this is OK,’ when it comes up.”
New changes already adopted would remove the legislation’s earlier criminal penalty for sharing marijuana or intoxicating hemp products among adults, provided that the sharing takes place on private property. Certain outdoor concert venues would also be exempt from laws against open consumption provided they have separate smoking and vaping areas.
The committee amendment also removed a provision that would have created a mandatory minimum sentence for someone caught consuming marijuana in the passenger seat of a vehicle.
Notably under the amended bill, THC-infused beverages containing up to five milligrams of THC could be carried in stores statewide rather than just in dispensaries. A $3.50 per gallon tax would be levied on THC beverages.
A separate 10 percent tax on marijuana products in the bill would also apply to intoxicating hemp products.
While especially high-potency products would still be forbidden under the amended bill, regulators at the Division of Marijuana Control could by rule increase the allowable potency above the initial 70-percent THC cap.
Licensed dispensaries would also be able to sell and transfer marijuana to other license holders.
Other changes increased the amount of tax revenue going to municipalities that host cannabis businesses, upping it to 25 percent of state cannabis revenue for a period of seven years. That’s a higher amount than was contemplated in any other marijuana bill this session.
In March, a survey of 38 municipalities by the Ohio State University’s (OSU) Moritz College of Law found that local leaders were “unequivocally opposed” to earlier proposals that would have stripped the planned funding.
Rep. Brian Stewart (R) noted at the previous committee hearing that the latest provision around host community funding was the most generous lawmakers had offered all session.
“The Senate’s version of the bill was zero percent. The governor’s introduced version of the bill was zero percent,” he said, adding that HB 160 itself initially set a 20-percent allocation for five years. “We have increased that to 25 percent over seven years.”
Ohio’s Senate president has pushed back against public criticism of the Senate bill, claiming the legislation does not disrespect the will of the electorate and would have little impact on products available in stores.
Meanwhile in Ohio, adults are now able to buy more than double the amount of marijuana than they were under previous limits, with state officials determining that the market can sustainably supply both medical cannabis patients and adult consumers.
Effective earlier this month, adults can purchase up to 2.5 ounces of flower cannabis per day—a significant increase compared to the prior daily transaction limit of one ounce. The change will make it so consumers could buy marijuana in an amount that matches the 2.5 ounce possession limit under state statute.
A Department of Commerce spokesperson told Marijuana Moment that “back when the non-medical program came online, there were lower limits on non-medical sales, which was primarily to help ensure there was an adequate supply for medical patients.”
“A subsequent review of the available inventory data supports this increase adjustment up to the statutory limits identified in the statute,” they said.
Meanwhile, Gov. Mike DeWine (R) in March announced his desire to reallocate marijuana tax revenue to support police training, local jails and behavioral health services in a state budget bill. He said funding police training was a top priority, even if that wasn’t included in what voters passed in 2023.
Separately in the legislature this month, Sens. Steve Huffman (R) and Shane Wilkin (R) introduced legislation that would impose a 15 percent tax on intoxicating hemp products and limit their sales to adult-use dispensaries—not convenience stores, smoke shops or gas stations
DeWine has repeatedly asked lawmakers to regulate or ban intoxicating hemp products such as delta-8 THC.
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Photo courtesy of Chris Wallis // Side Pocket Images.
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