Relationships. Commitment. Results.

icon Careers

Category: Cannabis Law

Ohio Recreational Marijuana Certified for November General Election


August 22, 2023

On August 17, Ohio Secretary of State Frank LaRose officially certified an initiative for the November 2023 ballot that would legalize adult use cannabis in Ohio.  Under the proposal from the Coalition to Regulate Marijuana Like Alcohol, all adults age 21 and older would be permitted to possess up to 2.5 ounces of adult use cannabis and up to 15 grams of adult use cannabis extract for personal use.  The measure would also allow home-growing of up to 6 plants per person, with a maximum of 12 plants per household.

If approved, the measure will create a new regulatory body, the Division of Cannabis Control under the state Department of Commerce, to manage the adult use program.  Growing, processing, or selling adult-use cannabis will require a license from this new regulatory agency.  The first adult use business licenses will go to existing medical marijuana operators.  Any such applications must be approved by the Division of Cannabis Control within 9 months of the adult use statute becoming effective.

The measure also requires the Division of Cannabis Control to issue 40 adult use cultivator licenses and 50 adult use retailer licenses to new operators.  Preference will be provided to applicants who meet certain requirements under the new cannabis social equity and jobs program.  That program requires that owners show both social and economic disadvantage, as determined to be sufficient by the Ohio Department of Development.  This may include: wealth certification; social disadvantage based on race, ethnicity, gender, physical disability, or long-term residence in an area of high unemployment; or, previous criminal arrests or convictions of owners, their spouses, children, or parents for marijuana related offenses.

Applicants who do not meet the social equity prerequisites are not completely out of luck.  The Division of Cannabis Control is also authorized to issue a second round of licenses 24 months after the first adult use license is issued, with the exact number of licenses available to be determined by the Division at later date.

Local municipalities and townships may opt out of allowing adult use cannabis businesses, but must affirmatively elect to do so via an ordinance or resolution.  Given that a substantial number of Ohio’s townships and municipalities currently prohibit medical marijuana businesses, we anticipate that local governments across the state will generally take an adverse position to the idea of recreational marijuana being legally grown or sold within their boundaries.  Additionally, as with medical marijuana businesses, adult use businesses cannot be located within 500 feet of the property boundary line of a “prohibited facility,” which includes any school, church, library, playground, or park.

Prospective adult use applications should be well-aware of the challenges involved with finding suitable property for their cannabis business.  Identifying property has been a major hurdle in previous medical marijuana licensing rounds, even for the best-equipped applicants.  It is likely that interested businesses will need to search long and hard in order to find a property that is situated in an area allowing adult use cannabis, meets the distance requirements from any prohibited facilities, and is otherwise suitable to locate a successful retail or cultivation business.

While Ohio’s adult use ballot measure is quite permissive in terms of what it allows, there are still limits within the measure.  For example, employers can still prohibit workers from consuming adult use cannabis, even if the use occurs off-the-job.  Employers should be advised that the measure does not impact their right to maintain drug-free workplace or zero tolerance policies, mandate drug testing for employees or new hires, or receive rebates or discounts on premium rates for workers’ compensation in connection with drug-free workplace programs.

Further, operating a motor vehicle, watercraft, or aircraft while under the influence of cannabis remains unlawful.  Smoking, vaporizing, or using any other combustible adult use cannabis product while in any such vehicle is also prohibited, including for passengers.

Being an indirect initiated statute, the measure will require only a simple majority from voters in order to pass and become law.  While Ohio’s state legislature has been lukewarm in its support for cannabis-related legal reforms, Ohio voters appear to strongly favor the idea.  A July 2023 poll of 500 voters by Suffolk University and USA TODAY showed a resounding 59 percent of Ohioans in support of the measure, with only 25 percent opposed.  As such, it is very likely that Ohio will soon be joining 23 other states in allowing the recreational use of marijuana.

Alexander R. Bibisi is an associate at Walter Haverfield who focuses his practice on hospitality and liquor control. He can be reached at abibisi@walterhav.com or at 216-658-6217. 

John N. Neal is head of the Walter Haverfield Hospitality and Liquor Control team. He can be reached at jneal@walterhav.com or at 216-619-7866.

A Cautionary Tale: Essential Oil Dispensers Found to be Prohibited Drug Paraphernalia


June 6, 2023

The U.S. Trademark Trial and Appeal Board (“TTAB”), in the case of In re National Concessions Group, Inc., TTAB Ex Parte Appeal No. 87168058, on May 3, 2023, affirmed the refusal to register two applications because the identified goods, i.e., “essential oil dispensers, sold empty, for domestic use,” in both applications, were found to be prohibited drug paraphernalia, under the Controlled Substances Act (“CSA”). As a result, the applied-for trademarks are not eligible for registration with the U.S. Patent and Trademark Office (“USPTO”).

Under trademark law, a valid trademark registration requires “lawful use in commerce.”  The CSA identifies “Marihuana” as a controlled substance that is unlawful to possess. 21 U.S. Code § 812.  Section 863(a) of the CSA makes it unlawful for any person to (1) sell or offer for sale drug paraphernalia; (2) use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) import or export drug paraphernalia. Further, under Section 863(d) of the CSA, any equipment, or the like, primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under the CSA. In short, even though essential oil dispensers, sold empty, can be asserted to be an item traditionally used for tobacco-based substances, the TTAB found enough extrinsic evidence to determine that an essential oil dispenser, as a “dabbing” tool, is prohibited drug paraphernalia under the CSA.

This precedential opinion, in turn, creates consequential ramifications going forward for those seeking federal trademark protection for marks involving cannabis-related goods. Up to this point, the USPTO has primarily focused on prohibiting marks which are actually associated with the cannabis plant. And, although there have been occasions in the past where federal trademark applications involving cannabis-related goods, not identifying cannabis, successfully obtained registration. A greater likelihood now exists that the USPTO will more closely examine any application involving cannabis-related goods, for a plausible connection to cannabis, even though some of these cannabis-related goods have been traditionally used for tobacco-based substances. 

This newly bolstered USPTO trademark application examination policy for marks involving cannabis-related goods amplifies a need to seek meaningful guidance from an experienced trademark attorney in order to develop a strategy when preparing to file a trademark application. Walter Haverfield’s attorneys regularly counsel clients in such matters.

Kevin Soucek is an attorney with the Walter Haverfield Business Services Group, focusing his work on transactional matters, tax matters, and trademark law. He can be reached at 216.619.7885 or ksoucek@walterhav.com.

Cannabis Business Owners: Don’t Be Left Out! Upcoming License Opportunities


May 31, 2023

Following a slow period, there is currently a lot happening in the cannabis industry.

To provide context, the cannabis industry is heavily regulated due to a variety of reasons, which range from protecting the public’s safety to adhering to basic tax requirements. Therefore, cannabis businesses are subject to numerous licensing, permit, and registration requirements that can become particularly complicated from a licensing standpoint. Additionally, compliance requirements differ from state to state and can change depending on the business category, such as medical vs. recreational or retail vs. dispensary.  

The Walter Haverfield Cannabis Law Team is keeping a close eye on application deadlines per state. 

The following states have currently accepted cannabis license applications:

  • New Jersey
  • Mississippi
  • Vermont
  • New Mexico
  • California

The following states have upcoming application rounds throughout 2023:  

  • Maryland
  • Missouri
  • U.S. Virgin Islands
  • Rhode Island
  • Minnesota

The next round of Missouri applications will be accepted between July 27 and August 10. This means there is still time for potential business owners to prepare the proper documents with the help of our experienced team. 

If you are interested in entering these markets, or wish to learn more about the cannabis business application process, please contact Walter Haverfield today.

Thomas B. Kern, partner, leads the Firm’s Cannabis Law Group. He advises and counsels entrepreneurs and businesses from a variety of industries at each stage of their life cycle. Thomas can be reached at tkern@walterhav.com or 614.246.2279.

Ohio Board of Pharmacy Releases Applications for 73 New Medical Marijuana Dispensaries

and
September 21, 2021

John NealSeptember 21, 2021 

Since its inception in 2018, Ohio’s medical marijuana program has continuously struggled with poor patient accessibility. In November 2020, 62% of registered patients reported having to travel more than 10 miles to reach a dispensary. To improve patient access, the Board of Pharmacy has approved the issuance of up to 73 new dispensary licenses. Interested applicants will need to move quickly, as this application window will close on November 18 at 2:00 pm EST.

The new dispensaries will be distributed across Ohio’s 31 “dispensary districts” based on patient population, with a goal of ensuring a ratio in each district of around 1,200 registered patients per dispensary. Some districts will have only one new license available, while severely underserved districts will have as many as 9 new licenses offered. Of the 73 total new licenses up for grabs:

  • 22 are located in northeast Ohio (including Cleveland, Akron, and Youngstown metros);
  • 8 in northwest Ohio (including Toledo metro);
  • 17 in southeast Ohio (including Columbus and Athens metros); and,
  • 26 in southwest Ohio (including Cincinnati and Dayton metros).

Applications must be submitted online using a web portal that will be posted on the Medical Marijuana Control Program’s website. The portal is expected to open on November 4 at 8:00am EST. Prior to the submission window opening, there will be two question and answer periods (9/20 – 10/6 and 10/17 – 10/21). The Board will limit questions to three per person per Q&A period. Importantly, any attempt to communicate with the Board following the end of the second Q&A period will result in an automatic disqualification from receiving a license. Accordingly, it is crucial that applicants obtain the assistance of legal counsel who are experienced in the medical marijuana industry and possess extensive knowledge of Ohio’s application process and the Board’s expectations from applicants.

The Board has announced an important change in how dispensary licenses will be awarded in this application round. During the previous 2017-18 application period, a third-party consultant scored each application based on the quality of detailed narrative responses to application questions. The 58 highest-scoring applicants were then awarded provisional dispensary licenses. In a tremendous paradigm shift, the Board has decided that the 73 new licenses will be awarded via a lottery system. Rather than competitively evaluating applications against one another, the Board will conduct a randomized drawing for each dispensary district. The drawing will produce a ranked order list of all applications in each district.

Next, the Board will evaluate each winning application for compliance with the Ohio Revised Code and Ohio Administrative Code. Winning applicants may be disqualified for any of a myriad of reasons, ranging from failure to fully respond to all application prompts, to violations of Ohio’s complex regulations surrounding application submissions, ownership disclosures, or financial requirements. The Board will also evaluate each applicant’s access to liquid capital ($250,000 minimum) and may refuse to issue a conditional license to any applicant possessing insufficient assets. Submitting a perfect application will be a necessity, as it is unlikely that applicants will be given any opportunity to amend or correct deficiencies identified during the Board’s review.

Applicants may only submit one application per land parcel (submitting subsequent applications for any adjoining parcels will result in disqualification from this licensing round). Note that applicants are required to have control over any parcel for which they apply, either by ownership or lease. Otherwise, applicants are not limited in the number of applications they may submit. However, the Ohio Admin. Code bars a “single owner” from receiving more than five dispensary licenses at any given time. State regulations also prohibit the issuance of more than 66% of available licenses in a multi-license district to any single applicant.

The Walter | Haverfield team possesses experience in the cannabis industry that is unparalleled in the state of Ohio. During Ohio’s 2017 licensing round, our team handled dozens of dispensary applications, resulting in multiple license awards across the state. Outside of Ohio, the attorneys of our cannabis law group have helped hundreds of applicants across more than 30 U.S. states and five countries to obtain both competitive and non-competitive business licenses. We highly encourage you to contact us below to learn more about Ohio’s medical marijuana program and  get started on your dispensary application immediately.

John N. Neal is head of the Walter | Haverfield Hospitality and Liquor Control team. He can be reached at jneal@walterhav.com or at 216-619-7866.

Alexander R. Bibisi is an associate at Walter | Haverfield who focuses his practice on hospitality and liquor control. He can be reached at abibsi@walterhav.com or at 216-658-6217. 

CBD Oil Now Legal in Ohio


August 7, 2019

Megan Greulich

On July 30, 2019, Governor Mike DeWine signed Ohio Senate Bill (SB) 57 legalizing the possession, purchase or sale of hemp and hemp products. The bill included an emergency provision making it effective immediately, which means that school districts are likely to see an increase in requests for administration of cannabidiol (CBD) oil, a hemp derivative. School districts should be aware of Ohio’s legalization of hemp and hemp products and how the new provisions impact the use of derivatives like CBD oil.

Many people associate CBD oil with marijuana, but SB 57 distinguishes the two by defining “hemp” and “hemp products,” and affirmatively excluding those items from the statutory definition of “marijuana.” “Hemp” is now defined 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 (THC) concentration of not more than .3% on a dry weight basis.” Hemp and marijuana both come from cannabis plants, but hemp plants have a very low concentration of THC. Marijuana has higher levels of THC, which is the active ingredient in marijuana that has the potential to create a “high” or intoxicating effect.

The new provisions define “hemp products” as any products made with hemp and containing .3% or less THC, including “cosmetics, personal care products, dietary supplements or food intended for animal or human consumption, cloth, cordage, fiber, fuel, paint, paper, particleboard, and any other product containing one or more cannabinoids derived from hemp, including cannabidiol.” The language specifically excludes hemp and hemp products from the statutory definition of “drug,” and removes THC found in hemp and hemp products from Ohio’s list of Schedule I controlled substances.

As a result of hemp and hemp product legalization, the Ohio State Board of Pharmacy released a statement Tuesday, clarifying that in light of the bill, hemp products, including CBD oil now may be sold outside of licensed medical marijuana dispensaries. The Board of Pharmacy also stated that other Ohio Medical Marijuana Control Program (OMMCP) requirements do not apply to the use of hemp and hemp products, including CBD oil. The Board and the Ohio Department of Commerce plan to release future guidance regarding any OMMCP restrictions on licensed dispensaries selling hemp-derived CBD products.

Another important factor is the status of hemp legalization at the federal level. In 2018, the Federal Farm Bill removed hemp from the definition of “marijuana” in the Controlled Substances Act. But in its guidance document titled, “What you need to know (and what we’re working to find out) about products containing cannabis or cannabis-derived compounds, including CBD,” the U.S. Food and Drug Administrations (FDA) notes that CBD oil still is subject to the same laws and requirements as other FDA-regulated products. To date, the FDA only has approved one CBD prescription drug product for treating certain forms of epilepsy, and currently is working to study the overall effects of CBD use. The guidance also highlights that while some products are marketed to add CBD oil to food or label it as a dietary supplement, marketing CBD oil in this manner remains illegal under federal law.

So what’s a district to do? Now that hemp and hemp products like CBD oil are no longer considered “marijuana” or “drugs,” and their possession, purchase and sale are legal, districts should not treat them as illegal substances. Requests for administration of CBD oil to students should be treated the same as any other request for administration of a homeopathic remedy under existing board policies and procedures. Legalization of hemp and hemp products does not prevent the board from setting reasonable standards for administration of medications or other substances within the school setting. Remember, only hemp and hemp products containing THC levels not to exceed .3% are legal. School districts should set reasonable expectations and standards for the use of hemp and hemp product derivatives, as well as for verification that maximum THC levels do not to exceed .3% prior to any product’s approval for use in the school setting.

Megan Greulich is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.