On September 8, 2016, Ohio became the 25th state to legalize a comprehensive medical cannabis (medical marijuana) program, perhaps in part to combat the opioid epidemic by offering relief to those suffering from intractable pain caused by a number of recognized medical conditions. Ohio’s Medical Marijuana Control Program Law (Sub. H.B. 523), however, creates more questions than it currently answers. While the law is intended to legalize the cultivation, dispensing and consumption of certain marijuana-containing products, a complex regulatory framework must first be built and put in place before the Program can function.
Sub. H.B. 523 establishes a Medical Marijuana Advisory Committee authorized to make recommendations concerning the Program to Ohio’s Department of Commerce, Board of Pharmacy, and State Medical Board, each of which over the next year must issue regulations to govern the Program. The regulations will address licensure of medical marijuana cultivators, processors, laboratories that will test medical marijuana, and retail dispensaries; the registration of patients who will be able to use medical marijuana and their care givers; and the process by which the Ohio State Medical Board will grant physicians certificates to recommend medical marijuana to patients.
The Committee is made up of 14 individuals, including practicing pharmacists and physicians, a nurse, representatives of local law enforcement, employers, labor, agriculture, mental health professionals, caregivers, patients, alcohol and drug addiction treatment professionals and academic researchers. It includes both staunch opponents to legalizing recreational marijuana and staunch supporters of medical marijuana, which likely will result in spirited meetings.
Under Ohio’s framework for issuing regulations, all rules must be reviewed by Ohio’s Joint1 Committee on Agency Rule Review (JCARR) and Ohio’s Common Sense Initiative (CSI). The CSI process is intended to require that rulemaking balance a rule’s regulatory intent with the impact it will have on businesses. Accordingly, JCARR may recommend that any rule be invalidated if it exceeds the proposing agency’s statutory authority; conflicts with an existing rule of the proposing agency or a rule of another state agency; conflicts with legislative intent; does not contain a complete and accurate rule summary and fiscal analysis; does not incorporate by reference standards for a text or other material required by Ohio law; or under the CSI process, has an adverse impact on business which has been demonstrated through a business impact analysis and the rule’s regulatory intent does not justify its adverse impact on business.
However, there are certain aspects of Ohio law that are left unchanged by H.B. 523. Ohio’s Medical Marijuana Control Program does not affect an employer’s ability to prohibit marijuana use by its employees, fire or refuse to hire employees who use marijuana, or establish and enforce a drug testing policy, drug-free workplace policy or zero-tolerance policy.
How the New Law Affects Physicians
Physicians themselves — or in response to patient inquires — may reasonably ask what they can or cannot currently do under the new law. Until the State Medical Board of Ohio issues final regulations for issuing certificates, Ohio physicians cannot recommend or prescribe the use of medical marijuana to patients.
Because patients are able to obtain medical marijuana in other states where it is legal (the closest is Michigan), it would be prudent for physicians to ask patients whether they use medical marijuana, since that could pose contraindications or adversely affect medications prescribed.
Joe Feltes is an attorney with Buckingham, Doolittle & Burroughs in Canton, OH, and a member of its Health & Medicine Practice Group. He is also the managing partner of Buckingham Canton. For more information about the law firm, go to www.bdblaw.com or e-mail Mr. Feltes at JFeltes@BDBLAW.com.
Jim Simon is an attorney with Buckingham, Doolittle & Burroughs in Akron and a member of its Real Estate & Construction and Public Law Practice Groups. For more information about the law firm, go to www.bdblaw.com or e-mail Mr. Simon at JSimon@BDBLAW.com.
- Aptly named!