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Marijuana initiatives, legislation slowly taking root in the Midwest: Ohio joins Illinois, Minnesota, Michigan in legalizing medical marijuana; North Dakota residents to vote on it in November

by Jon Davis ~ September 2016 ~ Stateline Midwest »
As the movement to legalize marijuana or, at least, medical marijuana gathers steam, the Midwest is living up to its reputation as neither the first nor last region of the country to adopt big changes. There are no signs that any Midwest state is ready to follow Colorado, Washington, Oregon and Alaska by fully legalizing recreational use, although marijuana industry observers say that has more to do with the industry’s “Coasts First” focus.
But Illinois, Michigan, Minnesota and, as of June 8, Ohio, have established medical marijuana programs. In addition, four states in the region — Illinois, Minnesota, Ohio and Nebraska — have decriminalized the possession of small amounts of marijuana.
North Dakotans will vote in November on a ballot proposal to legalize medical marijuana; Michigan voters might, too, depending on whether state courts rule that the signatures gathered in support of that petition are valid.
“It’s not the first region to take on marijuana issues, but not the last. It’s really representative of where the country as a whole is,” says Karen O’Keefe, director of state policies for the Marijuana Policy Project, who nonetheless predicts that one or two Midwest states will be among the next wave of legalization by 2020.
Ironically, the Midwest originally was on the front line of the decriminalization debate. The Michigan city of Ann Arbor decriminalized possession in 1972 (a year before Oregon became the first state to switch possession of an ounce or less from a criminal to a civil charge) in reaction to a state law requiring a year in prison for possession of two ounces or less — a law under which poet John Sinclair was sentenced to 10 years in prison for possessing two joints.
The Sinclair arrest led to a national “freedom rally” and even a John Lennon song; three days after the rally, Michigan’s Supreme Court ruled the state’s marijuana laws unconstitutional.
In 2008, Michigan became the first Midwestern state to legalize medical marijuana (via a ballot measure), followed by Illinois in 2013 and Minnesota one year later (via legislative action in the latter two states). Curiously, and perhaps somewhat counter-intuitively in this hyper-partisan era, medical marijuana seems to be a mellower subject that cuts across party lines.
Earlier this year in Iowa, House Democrats teamed up with the “nay” side of a divided Republican caucus to defeat HF 2097, which would have allowed Iowans to purchase cannabis oil in other states and bring it home for medicinal purposes.
That same measure also would have added multiple sclerosis and cancer with prognoses of 12 months or less of life to intractable epilepsy as eligible conditions for treatment. (Iowa currently allows intractable epilepsy patients only to use medicinal cannabidiol, but does not allow it to be manufactured in the state).
In Ohio, HB 523 passed the Republican-controlled Legislature — 67-29 in the House and 18-15 in the Senate — and was signed into law by Republican Gov. John Kasich. (In contrast, the medical marijuana laws in Illinois and Minnesota were passed by Democratic-led state governments.)
Rep. Steven Huffman, a medical doctor who sponsored the Ohio bill, said its success was based on the will of voters in the state. Polls showed support fora medical marijuana program running between 80 and 90 percent.
In contrast, Ohioans overwhelmingly rejected (by vote of 64 percent to 36 percent) a ballot proposal in November 2015 to legalize marijuana use, cultivation and sales under limited conditions. (The wording of Issue 3 also raised concerns about creating a monopoly by giving 10 “growth, cultivation and extraction facilities” exclusive rights to commercial production in Ohio.)
“We listened to the people,” Huffman says. “They wanted medical marijuana; they didn’t want the liberalization of it [like some other states].”
HB 523 also was partly defensive; Ohio is a ballot initiative state, and the medical marijuana advocates were collecting signatures for what Huffman saw as a medical marijuana bill that would have been pseudo-recreational.
“We wanted to lead before we were led down a path that was both recreational and medical,” Huffman says. “Recreational is a discussion for another day, but I think that day is coming.”
Ohio used Maryland’s medical marijuana law as its model because legislators didn’t want medical marijuana regimens as loose as those in California or Colorado (which has also legalized recreational use), he said.
HB 523 doesn’t allow patients to smoke marijuana, though it does allow vaporization. Nor does it allow patients to grow their own. “There is no other medication I know of that you grow at home,” Huffman adds.
But what about the tax revenue?
While license fees in Ohio will be generated to cover costs, there is no provision for tax revenue on medical marijuana (Ohio doesn’t tax medications in any form). But the state’s new Medical Marijuana Control Commission will be able to suggest taxation in the future.
“It’s on the radar, but it’s not an emphasis in the bill,” Huffman says. “There’s a fine line to raising taxes and fees so high that you eventually drive everybody into the black market and then you haven’t really accomplished anything.
“There’s an opportunity there, but I think we’re going to have to see how it plays out.”
As for taxation of marijuana in general, the numbers are already eye-catching, and likely to grow as legalization spreads. Colorado reaped $135 million in state marijuana taxes in 2015; Washington gathered $210 million in 2015 and through the first half of 2016, O’Keefe says.
Chris Walsh, managing editor or the online news site Marijuana Business Daily, says his publication estimates there will be between $3.5 billion and $4.3 billion in retail marijuana sales nationally in 2016 – up from between $3 billion and $3.5 billion last year. That range is anticipated to grow by 2020 to between $6 billion and $11 billion.
But tax revenue is “just one piece of the whole package,” O’Keefe says. “Legislators and the public need to be convinced that (legalization) is good policy and won’t cause too many problems.”
Taming, or creating a monster?
That’s where Kevin Sabet comes in. The president and CEO of Smart Approaches to Marijuana, Sabet says the legalization movement is not good public policy, but rather the result of a well-financed public relations campaign by hedge funds and private equity groups hoping to turn legal marijuana into “Big Tobacco 2.0.”
And just like tobacco, he says, the marijuana industry relies on creating new users, which means targeting young people. According to Sabet, the percentage of people 12 and older in Colorado and Washington who report using marijuana within the last year is rising faster than the national average.
Between 2011 and 2014, those two legalization states had higher rates of marijuana use than the national average — 16 to 21 percent in Colorado and 15 to 19 percent in Washington vs. the national average of 12 to 13 percent, data from the National Survey on Drug Use and Health show.
Among 12- to 17-year-olds who reported using marijuana within the last month, there was a drop nationally from 7.6 percent to 7.2 percent nationally; at the same time, increases were reported in Colorado (from 10.5 percent to 12.6 percent) and Washington (9.5 percent to 10.1 percent).
“It’s about a corporate free-for-all and policies that allow for edibles, candies and cookies,” says Sabet, who is also director of the Drug Policy Institute at the University of Florida’s College of Medicine. “This isn’t about hippies who can’t get the time of day right. This is about 30-year-old Yale graduates who are geniuses putting this together.”
Moreover, he adds, marijuana itself is far more potent than it was during the 1970s, when levels of THC (the main active chemical source of the “high”) was 1 to 4 percent. Today, it’s around 14 percent. In marijuana edibles and candies, or cannabis oil concentrates or “waxes,” the percentages top 90 percent.
“This is not your Woodstock weed, this is not what your parents smoked. This is more potent and dangerous stuff,” Sabet says.
As for medical marijuana programs, Sabet says he doesn’t oppose them; the potential medical benefits should absolutely be investigated, but marijuana should be treated as any other potential medication – with federal oversight and rigorous tests and, if cleared, by prescription only.
So, what are states to do?
States have options beside “legalization or incarceration,” he adds. They can allow “smokeable” marijuana while banning edibles, or adapt the ban on tobacco advertising for marijuana.
An advertising ban is also one of the recommendations from David Jernigan, associate professor at Johns Hopkins’ Bloomberg School of Public Health and director of the Center on Alcohol Marketing and Youth. In a 2003 presentation available at Smart Approaches to Marijuana’s website, Jernigan cites the historical experience with alcohol to recommend particular steps for any state’s marijuana regulation regimen, starting with the point that marijuana cannot and should not be treated as an “ordinary” commodity because “the market” will not regulate it in ways healthy for young people.
Nor should states be lured by the potential tax revenue. Marijuana regulation belongs with public health departments, not treasuries; tax revenue should be secondary and incidental to regulation, and indexed to inflation. States should also create and safeguard state-run monopolies (production, wholesale and retail), regulated by public health authorities.
States should control the size and power of the marijuana industry, in part by banning marketing. Precedent for that exists from tighter regulations of medicinal marketing and, of course, the ban on tobacco marketing. States should also invest in policy research to test the effectiveness of, and defend those controls; and create a social movement for tighter control to counter the industry’s inevitable millions spent in lobbying for a freer hand.
Sabet says states will have legal leeway to explore these questions and approaches because the federal government is likely to maintain their hands-off approach.
Even though the U.S. Drug Enforcement Administration kept marijuana as a Schedule 1 narcotic because plant material isn’t a medication, he adds, it correctly allowed for more investigation of marijuana as a medication.
“Congress has no appetite for this,” he says. “We’ll see where this takes us in the next few years.”
Marijuana Business Daily’s Walsh agrees: “The most likely scenario at this point is that the federal government essentially codifies into law that the states can decide this one on their own,” he says.

Trends in Midwest on medical marijuana, marijuana proposals

This summer, Illinois Gov. Bruce Rauner signed bills extending the state’s medical-marijuana pilot program through July 2020 (SB 10) and decriminalizing the possession of 10 grams or less of marijuana (SB 2228). SB 10 added post-traumatic stress disorder to the list of conditions eligible to be treated with medical marijuana and allows people with terminal illnesses to apply for medical-cannabis registry ID cards.
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In Indiana, a comprehensive medical marijuana bill (SB 209) was introduced in January but did not make it out of legislative committee. The bill would have allowed caregivers and patients, with a doctor’s recommendation, to possess either up to 8 ounces of dried marijuana or to grow up to 12 plants for medicinal purposes in order to treat certain medical conditions. The measure also would have created a state-level department to issue medical marijuana ID cards to eligible patients.
Iowa residents with epilepsy can use cannabis oil under a 2014 law, but there is no lawful way to get it. A proposal (HF 2384) to allow Iowans to purchase the oil in another state and bring it home was defeated this year in the House.
Signed into law earlier this year by Kansas Gov. Sam Brownback, HB 2462 reduced first-offense possession penalties from one year in jail to six months, second offenses from felony to misdemeanor, and subsequent offenses to “drug severity level 5” felonies. A medical marijuana bill (HB 2282) would have empowered the Department of Health and Environment to establish a list of marijuana-eligible medical conditions, as well as rules for production and distribution and for registering patients or their caregivers. The bill did not advance.
Legal in Michigan since passage of a 2008 referendum, medical marijuana remains a legislative focus. Recent bills have called for a statewide legal/regulatory framework (HB 4209) for growers, processors and the transportation of marijuana to dispensaries, which haven’t been formally legalized; a “seed-to-sale” tracking system for marijuana products in commercial trade (HB 4827), and legalizing the manufacture and use of “marijuana infused” products (HB 4210). Meanwhile, MILegalize filed 350,000 signatures on June 1 to put a legalization referendum on the Nov. 8 ballot, but state officials argue that some signatures were gathered outside of the official window, thus rendering them ineligible. The matter was in state court as of early September.
Medical cannabis was legalized in Minnesota in 2014 (SF 2470, signed by Gov. Mark Dayton on May 29), and dispensaries began opening in mid-2015. As of Aug. 1, patients with intractable pain are eligible for medical marijuana. Advocates have petitioned the Minnesota Department of Health to add post-traumatic stress disorder to the list of conditions that permit individuals to use medical marijuana.
LB 643 would have established a medical marijuana program, but was defeated earlier this year after four hours of debate on the floor of Nebraska’s Unicameral Legislature. The bill would have allowed medical cannabis in liquid, oil, pill or vaporized form and authorized one manufacturer of medical cannabis in each of the state’s three congressional districts.
A medical marijuana Initiative will be on the Nov. 8 ballot in North Dakota. It would create a state-regulated medical marijuana program for patients with specified conditions and written certifications from their doctors. These patients could then purchase marijuana from licensed, nonprofit “compassion” centers or, if they live 40 miles or more from a center, grow their own for medical use.
Ohio Gov. John Kasich signed HB 523 into law on June 8, establishing a medical marijuana program based on the state of Maryland’s. Under the new law, seriously ill patients can buy and use medical cannabis that is cultivated and processed within Ohio. Smoking and home cultivation are not allowed, however.
After a referendum petition in 2015 to legalize medical marijuana in all forms was ruled ineligible for the ballot (almost half of the 16,543 signatures were thrown out as invalid), South Dakota legislators introduced a bill with identical language as SB 171. An amendment to the bill, though, would have only allowed the medical use of cannabis oil with less than 3 percent THC; a doctor’s prescription would have been required. The amended bill passed the Senate, but failed to make it through the House.
Proposals to decriminalize possession (AB 945) and establish a medical marijuana program (SB 789) were introduced during Wisconsin’s 2015-16 biennium, but they did not advance. SB 789 would have allowed qualified, registered patients to possess up to 3 ounces of marijuana or up to 12 plants grown indoors; it also would have authorized the state to establish licensed growers, dispensaries and quality control labs.


Fourth Midwest state decriminalizes possession of small amounts of marijuana

Befitting its status as the 21st state to enter the union, Illinois has become the 21st state to decriminalize possession of small amounts of marijuana. Under SB 10, signed into law in July, law enforcement agencies no longer arrest or incarcerate someone caught with 10 grams or less; criminal penalties have been replaced with civil law violations punishable by fines of between $100 and $200.
Moreover, possession of between 10 and 30 grams, up from 2.5-10 grams is now a Class B misdemeanor and possession of between 30-100 grams is a Class A misdemeanor. Possession of more than 100 grams is a Class 4 felony (the lowest level).
That’s what decriminalization is – reducing the charges for possession of small amounts of marijuana from criminal to civil counts, along with (usually) elimination of jail or prison time in favor or state- or local-level monetary fines.
Ohio, Minnesota and Nebraska have also decriminalized marijuana. Ohio, for example, classifies possession of less than 100 grams – along with growing less than 100 grams or giving less than 20 grams to another person – as “minor misdemeanors” not punishable by jail, but by fines up to $150 and possibly a driver’s license suspension of six months to five years.
In Minnesota, possession of an ounce or less results in a fine up to $200. But two or more ounces could land you in jail for up to five years and cost you a fine up to $10,000.
In Nebraska, the first offense for possession of less than an ounce of marijuana is a civil infraction punishable by a $300 fine. That rises to $400 and up to five days in jail for a second offense, and $500 and up to a week in jail for third offenses. And although second and third offenses are misdemeanors, they’re ones for which you can be cited only, not arrested.
Opponents argue that marijuana remains a “gateway” to harder drugs such as cocaine or narcotics, has a negative, cumulative effect on society, and has dangerous developmental effects on children’s brains.
Proponents argue that police time is better spent on more-serious offenses, and tax dollars are saved by not clogging the judicial system with low-level offenders – especially when Latino and African American youth are disproportionately targeted.
But Kevin Sabet, president and CEO of Smart Approaches to Marijuana, cites statistics from the Colorado Department of Public Safety to note that despite legalized marijuana, more Hispanic and African American youths are being arrested for possession than before legalization in 2012. (Marijuana use remains illegal for those under 21.)
According to Sabet, 3,234 juveniles were arrested for marijuana-related offenses in 2012 compared to 3,400 in 2014, an increase of 5 percent. But within those numbers is a glaring racial disparity: the arrests of Hispanics rose 29 percent (from 778 to 1,006) and 58 percent for African Americans (from 205 to 324), but dropped 8 percent for white children (from 2,198 to 2,016).