Hemp and CBD oil; One step closer to legalization

On July 17, 2019, Senate Bill 57, a bill decriminalizing industrial hemp cultivation and permitting possession of CBD oil derived from hemp was passed by the legislature and will be sent to the Governor for signature. Assuming it is signed (which is expected) it will take immediate effect.

Currently, the State Board of Pharmacy has a rule requiring that CBD products made from hemp can only be sold in medical marijuana dispensaries as a controlled substance. However, Senate Bill 57 amends Ohio Revised Code section 3719.41 to provide that “the [State Board of Pharmacy] shall not adopt rules including hemp or a hemp product in a schedule as a controlled substance”. It also allows hemp products, which includes CBD Oil to be commercially sold statewide. As such, it will soon be legal under State law to sell the oil anywhere including such places as vape shops and the local video stores.

Senate Bill 57 changes the definition of marijuana under Ohio Revised Code section 3719.01 by adding: “Marijuana does not include hemp or a hemp product as those terms are defined in section 928.01 of the Revised Code. The Bill creates Chapter 928 of the Revised Code to deal specifically with hemp and defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a dry weight basis.”

Hemp and marijuana are related, but actually two different plants. Hemp contains a very low level of tetrahydrocannabinol, (THC) the active ingredient that produces the “high” in marijuana. The maximum level of THC in hemp is 0.03%. Assuming the CBD oil at issue is made from hemp and contains less no more than 0.03% THC (which is typically the case), it will soon be legally sold statewide

At this time, most local ordinances do not distinguish between hemp and other products from the cannabis plant (such as marijuana). In fact, most define marijuana as “all parts of a plant of the genus cannabis, whether growing or not”. As a result these local ordinances arguably includes hemp since marijuana is all parts of a plant of the genus cannabis, and under state law hemp is “the plant Cannabis sativa L” (a plant of the genus cannabis).

So, will hemp (and thus its extract CBD oil) be illegal in some local communities even if Senate Bill 57 is signed by the Governor? More than likely the answer is “NO”.

For the most part local ordinances tend to mirror the Ohio Revised Code and simply group marijuana in the general category of a controlled substance. Most local codes then define a controlled substance as “a drug, compound, mixture, preparation or substance included in Schedule I, II, III, IV, or V established pursuant to Ohio R.C. 3719.41”  Since Senate Bill 57 removes hemp from this schedule in the Revised Code, by default it removes hemp products (such as CBD oil) from the definition of controlled substances under many local code.

Even if this is not the case in a particular community, once Senate Bill 57 takes effect, local prohibitions on hemp/CBD will still likely no longer apply

While a charter city can have local laws that are different from the State laws they cannot be in conflict. (Section 3, Article XVIII of the Ohio Constitution provides that charter municipalities are authorized “to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”).

Whether or not a local law conflicts with a state law is often the subject of litigation and the analysis can get rather complicated. In a simplified nutshell, if the local law regulates people’s conduct, (as opposed to governance of the City) and the State has a similar law that is a “general law” (one that applies State wide) the conflict rules apply. Here the subject marijuana provisions do regulate conduct and the State has a general law regarding it. For purposes of conflict analysis, the controlling test is whether the local ordinance prohibits that which the State statute permits, and vice versa. As the state permits CBD oil it would be an impermissible conflict for a local community to prohibit it.

So, you ask, if this is the case, why can local governments prohibit medical marijuana? The medical marijuana law as enacted by the State contained section 3796.29 which specifically took away the conflict issue by providing: “The legislative authority of a municipal corporation may adopt an ordinance, or a board of township trustees may adopt a resolution, to prohibit, or limit the number of, cultivators, processors, or retail dispensaries licensed under this chapter within the municipal corporation or within the unincorporated territory of the township, respectively.”

AUTHOR: Gerald McDonald
gmcdonald@pselaw.cpom