The only legal obstacle preventing federal prosecutors from cracking down on Ohio’s medical marijuana program is a budget provision that expired with the federal budget on Friday.
The provision prohibits the U.S. Department of Justice from using federal funds to crack down on medical marijuana in states where it is legal. In Ohio, the medical pot program is supposed to be fully operational by September.
The provision protecting medical pot users and growers is often referred to as the Rohrabacher amendment, named after Rep. Dana Rohrabacher, R-Calif. The amendment was added to the 2014 budget bill, and has had bipartisan support since then. It was included in the stop-gap budget measure that expired Friday.
Officials with Rohrabacher’s office say they expect it will be included in any additional continuing resolutions that may be passed to end a government shutdown.
“It has been supported on a bipartisan basis in recent years. There’s no reason to think that’s changed,” said David Carle, spokesman for U.S. Sen. Patrick Leahy, D-Vermont, who submitted it as part of the Senate’s actual budget, which would carry funding through the end of the fiscal year on Sept. 30.
Ohio law requires the state’s medical marijuana program to be humming weeks before Sept. 30. So, unless the provision is restored, the companies that by then will be growing tens of thousands of square feet of marijuana in documented indoor growing facilities across the state could be subject to federal prosecution.
“There does seem to be increased sentiment in Congress that the restrictions should be permanent,” said Ken Grubbs, a spokesman for Rohrabacher.
But others aren’t so sure, pointing to U.S. Attorney General Jeff Sessions’ vocal opposition to marijuana. Sessions peeled back an Obama-era policy that said federal authorities wouldn’t interfere in well-regulated state-sanctioned marijuana legalization efforts. This leaves it up to local assistant U.S. attorneys to decide how to proceed.
Ohio has two U.S. attorneys, one based in Cleveland and one in Cincinnati.
Southern Ohio District U.S. Attorney Benjamin Glassman issued a statement this month saying his office has limited resources “and that we necessarily focus our prosecutive decisions where we can make the biggest impact in reducing harm and promoting safety.”
“I have said before that the opioid epidemic is the public health and safety crisis of our lifetime, and I have also pointed to the disturbing increase in stimulant drugs like cocaine and methamphetamine,” he said. “The Attorney General has made clear that he fully supports our efforts on these fronts. It will take all of us working together — federal, state, and local law enforcement, doctors, teachers, families, and friends — but we can and will stem this tide.”
Northern District U.S. Attorney Justin Herdman has said his office has always prosecuted marijuana cases and will continue to do so.
U.S. Sen. Sherrod Brown, D-Ohio, said the Justice Department should not waste resources going after medical pot growers and users.
“The Justice Department should focus on supporting Ohio law enforcement efforts to combat the opioid and heroin epidemic, not wasting valuable time and resources going after families using medical marijuana to treat cancer or Parkinson’s,” said U.S. Sen. Sherrod Brown, D-Ohio.
Republican Ohio Senator Rob Portman did not respond to requests for comment on the issue.
The office of Ohio Gov. John Kasich directed all questions about Kasich’s position to the Ohio Department of Commerce, which said in an email,“The administration cannot speculate on an issue that is still under deliberation and review.”
Commerce department spokeswoman Stephanie Gostomski said state officials will monitor developments at the federal level.
“The Ohio Department of Commerce is following the legislative guidelines set up by (state law),” she said. “Our responsibility is to fulfill all statutory mandates in establishing Ohio’s medical marijuana program.”
Kevin Sabet, president of the anti-legalization group Smart Approaches to Marijuana, said the Rohrabacher amendment has seen more opposition than proponents anticipated. And he said there is a legal question as to whether it truly prevents federal prosecutors in Ohio from enforcing the law.
“I think there are lot more questions than there are answers,” Sabet said. “If I was an investor in the marijuana industry I’d be a little nervous.”
Thomas Rosenberger, director of the National Cannabis Association of Ohio, supports extending or cementing the Rohrbacher amendment, but doesn’t believe Ohio’s medical marijuana program would be doomed without it.
“Any time you are in a business environment and you can provide a level of certainty, that’s a good thing,” he said. “But even if it’s not (extended), I don’t foresee a crackdown in Ohio.”