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Ohio just legalized recreational marijuana. What does that mean for Pennsylvania?
Pittsburgh Tribune-Review - 11/8/2023
Nov. 8—On Tuesday, Ohio became the 24th state to legalize recreational use of marijuana after having a medical-only program in place. Now, all of Pennsylvania's neighbors, except West Virginia, allow recreational marijuana use. Pennsylvania passed medical marijuana laws in 2016. Pennsylvania medical marijuana patients must now be diagnosed with at least one of 23 qualifying conditions, including anxiety, post-traumatic stress disorder, cancer, opioid use disorder and epilepsy. Recreational legalization would open up marijuana access to adults.
TribLIVE spoke with two attorneys about how Ohio's decision could impact Pennsylvania.
Patrick Nightingale is a Pittsburgh-based attorney at PNK Law. Nightingale is a former prosecutor. Nightingale is executive director of the Pittsburgh chapter of the National Organization for the Reform of Marijuana Laws.
Steven Schain is a principal at Philadelphia-based law firm Smart Counsel LLC. Schain also teaches Cannabis Law at Stockton University in New Jersey and serves on Pennsylvania, Washington, Utah and Philadelphia County administrative committees charged with drafting and revising state and local cannabis related regulations.
The interviews were edited for space.
TribLive: With Pennsylvania nearly surrounded by states that have legalized marijuana, does this put more pressure on the state to make a similar move?
Nightingale: The support that we have in the General Assembly has been consistent and strong for many years. Unfortunately, those supporters do not control the Pennsylvania Senate. The Republican Party is the majority in the Senate, and getting anything to move through the Senate has proven extraordinarily difficult. So, I don't know that Ohio legalizing it is going to move the needle for Senate leadership as it stands right now.
In the legislative session beginning next year, there is going to be a serious look at what adult-use program in Pennsylvania could look like. Rep. Dan Frankel (D-Squirrel Hill) has already held one hearing on the issue and there will be more hearings in the new year. And of course, there's Senate Bill 846 (to legalize adult-use marijuana). But the bill has not gotten a hearing. So I think that there's not really going to be any progress until we get into 2024.
TribLive: Can anyone with a driver's license go over the border to purchase cannabis?
Nightingale: That's what it appears. Ohio doesn't appear to have any residency requirements. From what I've read it's setup similarly to Michigan's adult-use law in terms of possession limits, home cultivation, and establishing a retail system of cultivation, processing and dispensing.
TribLive: Is it legal to transport marijuana back over the border into Pennsylvania?
Nightingale: No, the only legal cannabis in Pennsylvania would be for medical-marijuana patients purchasing from a licensed dispensary. Any other cannabis, regardless of where it was sourced, would subject a Pennsylvania resident to criminal prosecution.
TribLive: Ohio has an existing medical market. How does legal recreational use impact that?
Nightingale: There's a lot of concern that once you have adult use that the focus was taken off of medical. One of the biggest differences is adult use will be taxed. In Pennsylvania, patients do not pay any tax on medical marijuana. Senate Bill 846 would impose a fairly substantial tax on retail sales as well as an excise tax in order to generate revenue.
TribLive: What do you think is important to keep in mind as we see all this play out?
Nightingale: One of the things I find very frustrating about the opposition is they pretend that people are not already consuming cannabis. Statistically speaking, up to 2 million Pennsylvanians are regular consumers. There's this notion that if Pennsylvania were to legalize, then all of a sudden you have hundreds of thousands of people who have never touched marijuana before recklessly consuming products and going to emergency rooms and so on. It's not realistic.
This is not introducing a new drug to Pennsylvania. This is simply moving consumers from the illicit market into a regulated market that can capture revenue instead of sending revenue into the hands of drug dealers. Legalize it or not, Pennsylvanians are still consuming cannabis.
The opposition pretends that being arrested, being prosecuted, placed on probation, and having a criminal record is not important. It means nothing to them that 15,000 Pennsylvanians annually continue to be prosecuted for possession of a small amount of marijuana and marijuana paraphernalia. It's not the most serious crime on the books, but if you get convicted you can lose professional licenses, you can lose employment, you can lose federally subsidized student loans, you can lose access to federally subsidized housing.
What about the cost of those 15,000 people annually, who lose their jobs, who have to pay for probation supervision. who have to hire lawyers and go to jail over a plant that is now legal in 24 states?
TribLive: How do you see Ohio's move impacting Pennsylvania?
Schain: Ohio became the 24th state to allow adult-use cannabis by use of a referendum because of its state constitution. The Commonwealth of Pennsylvania does not allow for referendums. And our assorted state legislators have been twiddling their thumbs offering different variations of adult-use programs. At this time, Pennsylvania adult U.S. dollars are simply going out of state.
One proposed methodology would harness Pennsylvania's existing Liquor Control Board to control and sell cannabis. That solution is ill-fated. Pennsylvania has been vastly successful in terms of controlling and sustaining the growth of the medical market, but it is currently dominated by multi-state operators.
In an adult-use system, traditionally, it allows quote "the little guy," a standalone operator, to have their shot at getting into the industry. The liquor control system simply won't work to fulfill that need.
TribLive: If Pennsylvania goes the route of having the liquor control board in charge, how do you see that playing out?
Schain: It will be a train wreck. For cannabis to work, both medical and adult use would need to be under the same roof. Allowing the LCB into an existing system would simply muddy the waters. Whatever value the LCB provided in the past is dissipating as wine is available through grocery stores and gas stations.
Stephanie Ritenbaugh is a Tribune-Review staff writer. You can contact Stephanie at firstname.lastname@example.org.
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