Ohio Governor’s Ban on “Intoxicating Hemp” Faces Immediate Legal and Legislative Challenges
A temporary ban on the sale of intoxicating hemp products in Ohio, issued by Governor Mike DeWine, is already encountering resistance from state lawmakers and legal challenges, raising questions about its long-term viability.
Ohio Governor Mike DeWine issued an emergency medical order on Wednesday, May 15, 2024, temporarily banning the sale of “intoxicating hemp” throughout the state. “This crisis is getting worse,” DeWine stated, explaining the rationale behind the order, which is set to take effect next Tuesday, May 21, 2024. “I’m not going to sit by and let this continue.” However, the governor’s decisive action may prove short-lived due to existing state laws and mounting opposition.
The limitations on the governor’s authority stem from legislation passed by Republican lawmakers in 2021, which curtailed the duration of emergency health orders. Under the current law, DeWine’s order can remain in effect for only 60 days, after which the state legislature must vote to extend it. This restriction was a direct response to the governor’s use of health orders during the pandemic, which led to the closure of schools, businesses, and other public spaces. Lawmakers were compelled to override DeWine’s veto to enact this limitation on executive power.
Legislators also possess the authority to repeal the intoxicating-hemp ban after just 30 days with a majority vote. Republican Representative Tex Fischer of the Youngstown area has already announced his intention to introduce a resolution to repeal DeWine’s order as soon as possible. Fischer expressed concerns that the governor’s actions could set a dangerous precedent, stating in an interview on Thursday, May 16, 2024, that if DeWine unilaterally bans THC beverages, he could eventually attempt to prohibit other products like smoking. Fischer highlighted DeWine’s long-standing efforts to restrict access to tobacco, citing his past actions as state attorney general, where he pressured drugstores to cease selling tobacco products due to their health risks, and his unsuccessful attempt to prevent cities from banning flavored tobacco. “I think a number of our members see it as an affront to our legislative authority, and have some institutional concerns that the governor can define things in statute like this,” Fischer said.
DeWine characterized the situation as dire, stating it was “absurd” that children could readily purchase these products. The governor’s order targets intoxicating THC products that do not legally qualify as marijuana, a gray area created by a 2018 federal law and a 2019 state law intended to legalize industrial hemp. Currently, there are no strict age restrictions on the purchase of these products, although some businesses voluntarily limit sales to individuals 21 and older, aligning with the age requirement for legal recreational marijuana in Ohio.
During a press conference on Wednesday, May 15, 2024, DeWine displayed three sets of candies, each containing a popular brand alongside a THC-infused knock-off version, emphasizing their appeal to children. He was joined by Dr. Hannah Hayes of Nationwide Children’s Hospital in Columbus, who reported a growing number of young children being hospitalized and treated for THC overdoses.
DeWine initially urged the legislature to address unregulated THC products in January 2024. The Ohio Senate subsequently approved a bill in May that would channel most “intoxicating hemp” products through state-licensed marijuana dispensaries, with an exception for hemp beverages, which could continue to be sold in establishments that sell alcohol. However, this bill has stalled in the House, prompting DeWine to take executive action.
“It is absolutely absurd that a 14-year-old, 13-year-old, can walk in the store and buy this stuff. It’s never what anybody intended,” DeWine emphasized.
DeWine’s health order is not only facing legislative opposition but also a legal challenge. Three businesses, including a vape shop in the Cincinnati area, filed a lawsuit in Columbus on Thursday, May 16, 2024, arguing that the governor lacks the legal authority to ban intoxicating-hemp products, referencing his previous unsuccessful attempt to alter the relevant laws. The lawsuit requests a Franklin County judge to block the ban from taking effect, asserting that the Executive Order threatens the livelihoods of “thousands of workers” in the hemp industry.
Larger hemp-related companies may be able to navigate the uncertainty. Jake Bullock, CEO of Cann, a nationally distributed, hemp-derived THC drink marketed similarly to alcohol with age restrictions, expressed hope that DeWine’s order would encourage lawmakers to crack down on less reputable companies selling counterfeit products. However, he acknowledged that the order creates uncertainty for his company’s distributors and retailers, leaving them in a state of limbo while awaiting the outcome of legal challenges or legislative action. “It probably makes sense for us to keep product in the market and just [put it] in a warehouse,” Bullock stated.
The situation raises the question of whether this will be DeWine’s final major public health initiative. While some lawmakers, like Fischer, believe the governor is overstepping his authority, legislative leaders have expressed openness to the order as a means to compel a legislative solution. Both House Speaker Matt Huffman and Senate President Rob McColley indicated on Wednesday, May 15, 2024, that they hoped the order would facilitate a compromise between the House and Senate. “There’s no testing regime, no standards,” McColley told reporters. “Frankly, it’s kind of a danger. I think the governor shares that concern, so he put in place this emergency order. Hopefully this will get some folks to take a fresh look at our legislation we already passed.”
Representative Dani Isaacsohn, the top Democrat in the Ohio House, echoed the sentiment that lawmakers need to address intoxicating hemp, stating before the order’s release that “Depending on what the language specifically is, I think there could be some legal challenges,” but emphasizing that “our job in the legislature is to keep the community safe and to keep kids safe.” Senator Andy Brenner, a key figure in limiting the governor’s emergency powers, noted that DeWine’s new order was less expansive than initially anticipated, suggesting that the restrictions on executive authority are functioning as intended. “I think he’s trying to do this to put pressure on the House,” Brenner said. “I don’t know if this would hold up in court.”
