COLUMBUS, Ohio — A judge in Sandusky County has temporarily blocked Ohio's new law banning "intoxicating" hemp products in Fremont, but it could have wide-ranging impacts for the rest of the state.
Judge Jeremiah S. Ray has issued a temporary restraining order on the hemp portion of Senate Bill 56. Signed into law in December, the legislation makes dramatic changes to marijuana usage and bans low-level THC hemp products.
"This is thus inherently discriminatory on its face," Ray wrote in his decision.
Seattle-based North Fork Distribution, which runs Cycling Frog Distribution, sued the Fremont Police chief and a detective to prevent enforcement.
Congress’s Agriculture Improvement Act of 2018 (Farm Bill) allowed for hemp products to be sold as long as they have .3% THC or less. U.S. Customs and Border Protection issued guidance on their website that under the law, the Drug Enforcement Administration no longer has the authority to seize and criminalize sending or buying seeds with less than .3% THC. In 2019, Ohio legalized the product, as well.
When voting to end the federal government shutdown in the fall, policymakers closed what they call a "loophole" in the Farm Bill that allowed for the low-level THC products to be sold without regulation. This ban goes into effect in November 2026.
After Congress's bill, lawmakers passed S.B. 56, eliminating intoxicating hemp except for THC-infused beverages. However, when signing, Gov. Mike DeWine vetoed that provision — banning all forms of the product.
The judge argued that the favoritism towards the federally illegal marijuana versus the federally legal hemp could likely violate interstate commerce regulations.
"The fact that Senate Bill 56 also has the practical effect of discriminating against thousands of in-state hemp and hemp-beverage manufacturers, producers, distributors, or retailers is no defense," he wrote. "If anything, the existence of parallel intrastate discrimination 'makes the protectionist effect of the ordinance more acute.'"
RELATED: What the fight against total 'intoxicating' hemp ban looks like from rural Ohio
Legal experts are currently evaluating whether this means Cycling Frog can continue selling its product across the state, since the manufacturer is exempt from complying with the law for the time being.
"The states can't pass laws that interfere with or discriminate against interstate commerce," Case Western Reserve University constitutional law professor Jonathan Entin said.
The ruling could impact more than just Fremont, Entin added. The restraining order applies to the police and "all who may act in concert with them" from taking action based upon S.B. 56. He said this could include the county sheriff, nearby law enforcement agencies, or rather, any department "that might in some sense be working in collaboration with these folks."
This order also fully protects third parties that "facilitate plaintiffs' businesses-such as distributors, warehousing, and logistics firms," the court said.
It is possible it could be the state of Ohio, too, Cycling Frog's attorney Andy Mayle said.
I asked why Mayle didn't also sue the state, but he responded that his team is looking to do a "reverse" class action. This could allow for injunctions against the current defendants and all similarly situated defendants. He is asking for the judge to certify a class of defendants of all law enforcement officers in Ohio.
Hemp advocates have said they plan to use this case to bolster other court battles across the state. The Attorney General's Office has just requested to intervene in the case.
There are multiple legal cases regarding S.B. 56, which hemp lobbyist Dakota Sawyer never wanted. He wanted to repeal the law via a referendum.
However, the campaign to repeal the ban did not collect enough signatures to get on the ballot. They were tasked with getting around 250,000 in several weeks.
This court win came soon after Sawyer said they were 30,000 signatures short of getting a repeal effort on the ballot. Other advocates disputed this and said it was 30,000 at the very least, and they were significantly further away than that.
RELATED: Effort to repeal marijuana restrictions, THC ban fails to make Ohio ballot
I have been covering marijuana policy extensively for years, including a series answering viewer questions about cannabis.
Burning out
"It's overall just a loss for Ohio," Urban Artifact's Scotty Hunter said.
Losing products means much more to Hunter than just losing dollars.
"We've had to reduce our staff," he said.
The intoxicating hemp products can look like candy, and they're sold at places like gas stations and smoke shops with no age limits.
"Our primary concern with intoxicating hemp was the products that are the edibles, primarily the stuff that's unregulated; we don't know where it came from. We don't know if it's even produced in the United States. We don't know if it's even marketed to be what it is," Senate President Rob McColley said. "It's also actually targeting children."
One of the biggest opponents to the repeal effort is actually the marijuana industry. Adrienne Robbins with the Ohio Cannabis Coalition represents licensed cannabis dispensaries, which are frustrated by the lack of oversight on hemp. Hemp sellers say that dispensaries just hate losing business to them.
"You have a group of businesses who decided to invest in Ohio, start businesses here, live here, serve medical marijuana patients, and now serve adult-use cannabis consumers, and do it in a safe way where they're also giving back to those communities that they're doing business in," Robbins said. "On the other hand, we have no idea where these products are coming from."
This whole discussion could become moot in November once the federal ban takes effect.
But Hunter, Sawyer, and other hemp sellers are trying to get Congress to backtrack the ban. Hunter feels confident they will.
"When those federal rules change, we should not be the ones behind, right?" he asked.
The case has a status hearing on April 9.
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I have a series answering your questions about cannabis in Ohio. Please email me written questions — or a video of you asking a question — to be featured in our next edition. Send questions to Morgan.Trau@wews.com with the subject line "THC questions."
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