In November, Ohio Could Become the 24th State To Legalize Marijuana

The cannabis initiative will appear alongside a measure aimed at protecting abortion rights, which could boost its chances.

An Ohio initiative that would legalize marijuana for recreational use officially qualified for this November's ballot yesterday. If successful, it would make Ohio the 24th state to allow cannabis consumption without a doctor's note.

The Ohio Legislature authorized medical use of marijuana in 2016. A February 2022 Emerson College poll found that a bare majority of likely voters (50.4 percent) thought marijuana also "should be legal for recreational purposes," while about 40 percent were opposed and 10 percent were undecided. The cannabis initiative, backed by the Coalition to Regulate Marijuana Like Alcohol and funded largely by the Marijuana Policy Project, will be presented to voters alongside an initiative that would guarantee abortion rights, which could boost turnout among voters inclined to favor marijuana legalization.

"This isn't groundbreaking," coalition spokesman Tom Haren said after Ohio Secretary of State Frank LaRose certified that the initiative campaign had collected enough signatures to put the measure on the ballot. "We're just trying to get Ohio in line with neighbors like Michigan and Illinois."

Michigan voters approved marijuana legalization in 2018, and the Illinois legislature followed suit the following year. Like those states and all the others that have legalized recreational use, the Ohio initiative would set a minimum purchase and possession age of 21. Adults 21 or older would be allowed to publicly possess up to 2.5 ounces of marijuana—the same as the limit in Michigan but higher than the one-ounce maximum in Illinois—and grow up to six plants at home. Michigan likewise allows home cultivation, while Illinois limits it to medical marijuana patients.

The Ohio initiative would establish a Division of Cannabis Control within the Commerce Department, which would be charged with licensing and regulating commercial growers, manufacturers, testing laboratories, distributors, and retailers. Sales would be taxed at 10 percent, in addition to standard state and local sales taxes that average 7.24 percent. Local governments would not be authorized to impose additional marijuana taxes.

Michigan's marijuana taxes are similar: a 10 percent retail tax, plus a 6 percent standard sales tax. But the taxes in Illinois are much higher: That state collects a 7 percent excise tax at the wholesale level, plus retail taxes that vary depending on the type of product: 10 percent on flower with a THC concentration up to 35 percent, 20 percent on edibles, and 25 percent on any product with THC content that exceeds 35 percent. Local governments impose additional taxes up to 3.75 percent. And all of that is on top of standard state and local sales taxes that average 8.82 percent.

Notably, legalization in Michigan was accomplished by a ballot initiative, the route that Ohio will take if voters give their approval. The designers of those initiatives evidently took to heart lessons from states like California, where heavy taxes and heavy regulation have combined to maintain a black market that still accounts for somewhere between two-thirds and three-quarters of marijuana sales seven years after voters approved legalization. Money-hungry legislators in Illinois, by contrast, apparently were unfazed by that example.

Another factor contributing to California's embarrassing situation is local bans on marijuana businesses, which have created "massive cannabis deserts" where "consumers have no access to a legal retailer within a reasonable distance of their home," as a 2022 report from Reason Foundation (which publishes this website) noted. The Ohio initiative opens the door to similar problems by allowing local governments to "prohibit" or "limit the number" of marijuana merchants within their jurisdictions. It does, however, give them an incentive to allow cannabis sales by promising them a share of the resulting tax revenue if they do.

Although the Ohio initiative's backers say their aim is to regulate marijuana "just like" alcohol, their plan does not completely fulfill that promise. Yes, the minimum purchase age, like the one for alcohol, would be 21, although there are reasons to doubt the wisdom of that limit, which leaves younger adults subject to criminal penalties for possession or for misrepresenting their ages while attempting a purchase. And yes, marijuana, like alcohol, would be subject to a special "sin" tax. Ohio's proposed 10 percent rate, according to at least one estimate, would have an impact similar to the combined effects of state and federal taxes on beer and wine prices. But alcohol regulations do not include anything like the personal possession restrictions that Ohio (like every other state that has legalized marijuana) would be imposing on cannabis consumers.

According to the initiative, exceeding the possession limit would be punishable under Section 2925.11 of the Ohio Revised Code. It would be either a misdemeanor or a felony, depending on the amount involved. By contrast, drinkers do not have to worry about criminal penalties when they transport more than a specified amount of beer, wine, or liquor for personal use.

For people who do not successfully complete the process to obtain the requisite license, selling marijuana likewise would remain a felony, punishable by one to eight years in prison, again depending on the amount involved. Selling alcohol without a license, by contrast, is a misdemeanor in Ohio, punishable by up to six months in jail.

Once people can legally buy marijuana, where can they legally consume it? That question has presented a puzzle in other states that have legalized recreational use without providing for businesses analogous to bars or restaurants that serve alcohol. When cannabis consumption is allowed only in private residences, a state is clearly not regulating marijuana "just like" alcohol. The problem is especially acute for out-of-state visitors, who are apt to find that their hotels frown upon marijuana use.

The Ohio initiative obliquely addresses that issue. It says marijuana use in "public areas" would be a "minor misdemeanor," punishable by a $150 fine. It explicitly does not permit marijuana use on on "federal, state, or locally owned land." It says landlords may not reject tenants based primarily on their cannabis consumption, although they would be allowed to prohibit pot smoking as long as that is a condition of the lease. Finally, the initiative says it does not "prohibit any public place from accommodating an individual's use of [recreational] cannabis," which seems to leave room for businesses where people can legally use marijuana.

Does that mean licensed dispensaries might also be allowed to "accommodate" cannabis consumption, in the same way that bars and restaurants "accommodate" alcohol consumption? Presumably that would depend on the regulations issued by the Division of Cannabis Control. I have asked the Coalition to Regulate Marijuana Like Alcohol for clarification, and I will update this post if and when I get an answer.

Details aside, this system obviously would be a big improvement on a legal regime that threatens all recreational cannabis consumers and anyone who supplies them with fines or incarceration. If voters approve the initiative, nearly half of the states will allow recreational use of marijuana, which nevertheless remains completely prohibited under federal law. The short-term prospects of resolving that contradiction, let alone in a sensible way, do not seem very bright.