Medical marijuana is now legal in Ohio, but — and it’s a big but — patients won’t be able to legally buy it here for at least a year, maybe two.
Until then, Ohio’s new medical marijuana law gives patients an “affirmative defense” against a drug charge, if they have a doctor’s note and meet other criteria. But patients haven’t had much luck obtaining such notes ahead of the law’s effective date today, another example to add to the law’s long list of unknowns.
Also on that list: How many growers and dispensaries will be allowed? What will doctors have to do in order to recommend medical marijuana?
So although today has been on the calendars of many Ohio advocates, it’s a largely symbolic date that most consider the starting line in what could be a complicated path to a working medical marijuana program.
What happens today
Starting today, patients who would qualify for the program have an “affirmative defense” against prosecution for possessing marijuana and paraphernalia that would be legal under the law, if a doctor signs off.
The patient’s physician must certify in writing that a bona fide relationship exists, the patient has one of about 20 qualifying conditions and that they have discussed the benefits and risks to using medical marijuana.
Medical marijuana is now legal in Ohio, but it could be two years before the program is operational.
Nicole Scholten of Cincinnati, whose 12-year-old daughter Lucy has cerebral palsy and epilepsy, said the majority of patients she knows have not had success obtaining an affirmative defense note. Scholten is hopeful Lucy’s doctors and other health care professionals will support medical marijuana use but said more education is needed.
“I encourage patients to be cautious because the affirmative defense is really a theory,” Scholten said. “It’s not a tested theory and it’s a theory no one wants to test. Patients should not think all is accepted and well.”
The affirmative defense only protects patients using one of the forms described in the law: Marijuana-infused edibles, tinctures, oils, patches and plant material. The law prohibits smoking marijuana and allows vaping, but the final list of approved forms and methods will be decided by the Ohio State Board of Pharmacy.
The law is silent on where patients are supposed to get their marijuana and doesn’t allow people to grow their own. Bringing marijuana into Ohio from a legal state would violate federal law.
And the affirmative defense is just that, a defense in court that would come into play after arrest. It won’t protect patients from being fired for marijuana use — employers’ right to do so is explicitly protected in the law.
What doctors are doing
Most Ohio physicians are waiting for the rules and regulations or at least some guidance from the Ohio State Medical Board.
The board plans to issue some guidance, spokeswoman Tessie Pollock said, but not this week.
The Ohio State Medical Association, which represents thousands of Ohio physicians, has recommended its members not act at this time. Association spokesman Reggie Fields said the affirmative defense part of the law has caused a lot of confusion among patients and doctors.
“The affirmative defense piece allows a doctor to certify a person has a condition but there’s no real system in place to outline exactly what that certification process is,” Fields said. “There’s still not a formal standard of care for using medical marijuana in Ohio.”
Physicians might be more willing to talk about marijuana with their patients after Thursday. The law grants immunity to doctors from civil liability, criminal prosecution and discipline from the state medical and pharmacy boards for advising patients use medical marijuana, discussing the drug with them or monitoring a patient’s treatment with marijuana.
What police are doing
Ohio Fraternal Order of Police President Jay McDonald said the law won’t likely change what law enforcement officers do. McDonald, a Marion police officer working on a county-wide drug task force, said that could change after the rules are written.
Until then, McDonald said, officers are likely to take into account an affirmative defense note before making an arrest.
“While it’s a defense to be applied in the courtroom, in most cases for affirmative defenses written in state law, the officers take that and apply it on the scene,” McDonald said.
What prospective patients are doing
Tara Cordle has the start of the marijuana law marked on her calendar with the importance of a family birthday. Cordle hopes cannabis will help her 10-year-old son Waylon, who has intractable epilepsy. Waylon suffers numerous seizures a day despite taking five different medications.
Cordle has collected signatures for every marijuana measure since 2012, including last year’s recreational measure, Issue 3. She said she’s relieved she won’t have to work on yet another failed ballot initiative and the new law is better than nothing.
“A lot of people hate the law and think it’s not good enough but it’s something,” Cordle said. “Just having the legislators speaking about it — that’s a huge thing.”
Cordle said Waylon’s doctors aren’t on board yet, but she will try to obtain an affirmative defense note.
“When you’ve been told your son’s not going to make it, you do whatever you need to do,” Cordle said. “Two years is a life or death situation to a lot of people including my son and I can’t justify waiting.”
What happens next
Sept. 8 starts the clock for several deadlines in the new law:
Oct. 8: The governor and legislative leaders from both parties must appoint 14 members to a new medical marijuana advisory committee by this date. Speaker Cliff Rosenberger issued a call for people interested in representing mental health professionals or patients to send a resume to his office at [email protected]
May 6, 2017: The Ohio Department of Commerce must complete rules and regulations for marijuana cultivators, including how many cultivation licenses will be available and how people apply for them.
Sept. 8, 2017: The Ohio Board of Pharmacy must complete rules and regulations for marijuana dispensaries and develop the process for registering patients in the program. The Ohio State Medical Board must decide how Ohio physicians can obtain a certificate to recommend medical marijuana. The Department of Commerce must finish rules and regulations for marijuana processors and testing labs.
Sept. 8, 2018: The program must be “fully operational.”