Ohio Legalizes Hemp

cannabis leaves

Governor Michael Dewine signed Ohio Senate Bill 57 this morning that officially legalized industrial hemp and products made from its active ingredient, cannabidiol or CBD, in the state of Ohio. After months of uncertainty as to whether Ohio retailers could stock their shelves with CBD-based products, heightened by the embargoing of products by the state of Ohio in recent months, There is no doubt now. Retailers in Ohio can now legally sell hemp and CBD based products; however, before Ohio grown hemp will make its way to market, Ohio farmers and processors will have to wait until the Ohio Department of Agriculture develops regulations and gets them approved by the USDA.

With a quick Google search it’s fairly easy to learn about the many benefits and opportunities associated with the hemp plant. However, one must not enter into the hemp or cannabis space without having a full comprehension of the legal risk involved and understanding the importance of legal compliance. For more information about hemp or the cannabis industry, please feel free to reach out to one of our experienced lawyers.

Regarding Privacy Ohio Sets a High Bar for Medical Marijuana

medical marijuana and privacy

Over the last few years, agencies such as the Federal Trade Commission have fostered a movement to encourage industry to implement the concept of privacy-by-design.  The idea behind privacy-by-design is that when developing new software, hardware, medical-devices or other such products that extract personal information, such as personally identifiable information (PII), health care information, geo-tracking data, etc., the manufacturer should consider privacy in the product’s design.

The European Union has historically been very aggressive on privacy matters and recently mandated privacy-by-design in its new General Data Protection Regulation (GDPR), which will become enforceable in May 2018. The GDPR will require companies to not only design compliant privacy policies, procedures, and systems at the outset of any product or process development but must also employ a data protection officer to ensure compliance.

Although the US has industry specific regulations for healthcare (HIPAA) and banking (GLBA) that require organizations to address privacy and security, and the Securities and Exchange Commission requires auditing and reporting of controls associated with information security and cybersecurity, until now, there has been no legislative rubric mandating privacy-by-design.

Recently, the Ohio Medical Marijuana Control Program (OMMCP) created mandates for privacy and information security that are among the strictest in the country.

The long and short is that all medical marijuana industry participants (cultivators, processors, dispensaries, or testing facilities) that use an “electronic system” for storing and retrieving records required by the regulations or related to medical marijuana in any way (including all patient data for dispensaries) shall implement a system that does the following:

  • Guarantees the confidentiality of the information stored in the system (emphasis on the emphasis);
  • Is capable of providing safeguards against erasures and unauthorized changes in data after the information has been entered and verified;
  • Is capable of placing a litigation hold or enforcing a records retention hold for purposes of conducting an investigation or pursuant to ongoing litigation; and
  • Is capable of being reconstructed in the event of a computer malfunction or accident resulting in the destruction of the data bank.

One of the above requirements clearly stands out.  If medical marijuana businesses use a computer to store medical marijuana related data (which will be most if not all its data), the system must be capable to guarantee the confidentiality of the data. In other words, the Ohio medical marijuana industry must guarantee patient privacy and the security of its data systems.

The result is an entirely new, state-based industry which legally must be designed with privacy and security in mind.  Personally, I believe that guaranteed confidentiality is impossible and any cybersecurity, physical security, or privacy professional worth their salt will tell you “there is no such thing as perfect security.”  In fact, most, if not all, federal and state privacy and information security laws require reasonable security, a standard which itself is continually evolving in the law. Consequently, I also believe that the required guarantee will ultimately be amended, compelled by litigation, lobbying efforts, or both and Ohio’s medical marijuana regulations will move toward a standard something more akin “reasonable security”.

However, I have resolved that this ridiculously high standard will be a good thing for the Ohio medical marijuana industry. It will make the entire industry put privacy, information security, and date protection on the short list of organizational imperatives.  An organization simply cannot ignore a regulation that requires a guarantee of confidentially.  These fledgling companies must hardwire privacy and security into their businesses from the very start. Here are a few suggestions:

  1. Most privacy breaches are the result of human error. Develop a 21st century information governance program comprised of policies and procedures that clearly articulate how information will be handled within the organization.
  2. Regularly train all members of the organization on privacy and information and physical security. Training can be done in group settings or one-on-one, online, or in person. There are many privacy and security training options and most are not cost prohibitive.
  3. Document all your privacy and security incidents and all corrective measures taken.
  4. Engage legal counsel. Yes, I am an information security and privacy attorney who wants to help medical marijuana companies. Yes, I am self-interested. However, my self-interest doesn’t change the fact that one thing attorneys can do is provide virtually ironclad confidentiality related to client information under certain circumstances, particularly in anticipation of litigation or prosecution. With cannabis currently illegal on a federal level, wouldn’t all Ohio medical marijuana business be conducted under the auspices of federal prosecution?

With the OMMCP taking such a bold stance on privacy and security it will be interesting to see if such rigorous requirements will be a help or a hindrance to the industry. Although wouldn’t it be a sweet twist of fate if an industry imperiled by stigma of the black market and “reefer madness”, becomes a sterling example of privacy and security the modern age? It is our goal at Ickes\Holt to see that happen.

Stay tuned for our upcoming article on the privacy and information security requirements for Ohio medical marijuana dispensaries, which must be prepared to comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Ohio Automated Rx Reporting System (OARRS) along with a whole host of particularized recordkeeping and reporting requirements.

NFL and Players May Join Forces on Medical Marijuana

nfl and medical marijuana

The National Football League generated $13 billion in revenue in 2016.[i]  The next closest professional sports league was Major League Baseball at $9.5 billion.  In comparison, the Premier League and the UEFA Champions League, both global soccer powerhouses, generated approximately $8.09 billion in revenue, combined.

While the NFL pales in comparison to corporate giants like Wal-Mart, Apple, and Amazon, it is clearly a financial and cultural giant in the United States.  It’s owners (see Robert Kraft and Bob McNair) and the NFL Commissioner, Roger Goodell, are politically connected both based on financial support and the popularity of their sport.   When the NFL acts, people generally notice.

That’s why a recent letter from the NFL to the NFL Players Association (“NFLPA”) is so interesting.  On July 31, it was reported that the NFL had officially offered to join with the NFLPA to study the use of medical marijuana as a pain management tool.[ii]  Currently, the NFL has a strict ban on any use of marijuana by its athletes.  In fact, just this past April, Roger Goodell stated that marijuana is “addictive” and “unhealthy” with “no medical benefit.”[iii]

Yet with the mounting evidence of chronic traumatic encephalopathy (“CTE””) in current and former players, and the federal lawsuit filed by 1,800 former NFL players alleging improper, illegal and deceptive distribution of opioids by NFL teams[iv], it seems that Mr. Goodell is reconsidering his position.

Almost 8,000 doses of nonsteroidal anti-inflammatory drugs and controlled medications were prescribed to players in the 2012 calendar year, according to an internal document from NFL medical adviser Lawrence Brown …

Those numbers could average out to about six to seven pain pills or injections a week per player over the course of a typical NFL season, according to the report.

The NFLPA, presumably in an effort to protect its players, started a study of the medical benefits of marijuana last year.  Now, it looks as if the NFL is ready to acknowledge it was wrong and chip in.

From my standpoint, this is a no-brainer.  Marijuana, specifically the cannabinoid CBD has been proven to have anti-inflammatory and pain relief properties.  Given the apparent rampant abuse of opioids in the NFL, any pain management alternative should be investigated.

Further, CBD has been proven to be a neuroprotectant.  In fact, there is a U.S. patent for the use of cannabinoids as neuroprotectants based on the research of a Nobel prize winning biochemist.  These medicinal properties of CBD are distinct from the psychoactive properties of THC and more importantly, are show significant promise for the prevention and treatment of brain injuries and maladies, including CTE.[v]

The question becomes, how will the NFL potentially implement a medical marijuana policy across its 32 teams?  23 of the 32 teams are located in States having medical marijuana laws.  The remaining 9 teams are located in States with only legalized CBD oil, mainly for treating epilepsy.  The difficulty, and danger, facing the NFL/NFLPA is in the disparity of State laws.

For example, in Ohio, medical marijuana is legal for certain statutory medical conditions, including chronic and severe pain.  See R.C. 3796.01(A)(6). So, players on the Cleveland Browns and Cincinnati Bengals can obtain prescriptions and use medical marijuana as a pain relief tool.  However, some states such as Illinois (See 40 ILCS 130/10(h)(1)) and Massachusetts (See 105 CMR 725.004) do not list generalized chronic pain as a qualifying medical condition.  So, what happens if the Cleveland Browns play the New England Patriots in Foxboro, MA?

… you mean beside the Browns losing?

While that is true, the bigger issue remains are Browns players who take their medical marijuana for pain in Massachusetts violating Massachusetts state law?  Can they be arrested?  Will a card carrying medical marijuana patient be treated as a recreational user in a State that does not recognize their qualifying medical condition?  The answer, I think, has to be yes.

And let’s not forget that marijuana is still illegal on the Federal level.  While legislation is in place to forego federal enforcement against State level medical marijuana use, there are questions about the Trump Justice Department’s commitment to that moratorium.  Is the big money, high profile NFL ready to risk federal enforcement against its teams, owners, and players?  Is the NFL willing to put its stamp on violating federal law in writing in a collective bargaining agreement?

Even with the proscription on federal enforcement against State level medical marijuana use, what happens when teams/players travel to different States for games?  Are they transporting a Schedule 1 controlled substance across State lines?  Are they trafficking?  At some point, isn’t it safe to assume the feds will take notice?  Even if teams & players choose to not travel with their medical marijuana, but instead purchase it while in the State, they are still faced with the potential issue of pain being an unsanctioned qualifying condition.  Moreover, nothing in the Ohio law indicates that out-of-state prescriptions/cards will be accepted in Ohio.  I am sure most other non-recreational States are similar.

Finally, what about when the football season is over?  During the offseason, many NFL players live in States different from those in which they play.  So, in our hypothetical, Player X from the Cleveland Browns uses medical marijuana for chronic pain.  In the offseason, Player X returns home to Idaho, which currently has no medical marijuana law of any kind. Player X is almost certainly breaking Idaho State law by possessing and using medical marijuana in the offseason.  This fact holds true for the remaining 21 States which have no medical marijuana laws or restrictive CBD specific laws.

While the NFL’s foray into medical marijuana is encouraging, it presents more questions than answers.  Also, it underscores the need for decriminalization of medical marijuana at the federal level.  The current rubric is schizophrenic, hypocritical, and untenable.

For more information on our Medical Marijuana practice, please check out the practice area page here.

[i] http://www.marketwatch.com/story/the-nfl-made-13-billion-last-season-see-how-it-stacks-up-against-other-leagues-2016-07-01

[ii] https://www.washingtonpost.com/news/sports/wp/2017/07/31/nfl-offers-to-work-with-players-union-to-study-marijuana-for-pain-management/?utm_term=.c2b39bbbc086

[iii] http://www.espn.com/nfl/story/_/id/19264404/commissioner-roger-goodell-says-nfl-sees-no-medical-benefits-marijuana

[iv] http://www.espn.com/nfl/story/_/id/18872827/nfl-teams-violated-federal-laws-regarding-prescription-painkillers

[v] https://www.si.com/nfl/2016/07/12/cannabis-cte-treatment-kannalife

Lawsuit Calls Feds to Account for Medical Cannabis Hypocrisy

feds and medical cannabis

In a lawsuit filed on July 24, 2017, a group of medical cannabis patients, including a former NFL player, seek to have the Controlled Substances Act, which categorizes cannabis a Schedule 1 substance, declared unconstitutional. Schedule 1 status essentially means that the federal government’s position on cannabis is that there is high potential for abuse, absolutely no medical benefit and cannot be safely used or tested even with strict medical supervision. Notwithstanding cannabis being legalized to some degree–medicinal to recreational–in 30 states, the complaint alleges that the federal government’s own conduct vis-a-vis cannabis belies any contention that cannabis should be categorized as a Schedule 1. Particularly, the complaint highlights that the federal government itself secured a medical cannabis patent and entered into licensing agreements with medical licensees.

Source: https://www.washingtonpost.com/news/early-lead/wp/2017/07/25/a-former-jets-player-is-suing-jeff-sessions-to-legalize-marijuana/?utm_term=.58722fe1d8b7

For a link to the entire complaint, which provides an excellent synopsis of the legal history of cannabis in the US: http://www.thecannabist.co/2017/07/25/marijuana-schedule-i-lawsuit-unconstitutional/84473/.

Check out our Medical Cannabis services here.

Senate Committee Extends Rohrabacher-Blumenauer Amendment to Ohio Medical Marijuana

department of justice

By voice vote today, the Senate Appropriation Committee, extended the so-called Rohrabacher-Blumenauer Amendment, which blocks the Department of Justice from spending any funds to undermine state medical marijuana laws.  The nascient Ohio medical marijuana industry can breath a sigh of relief as Ohio has been included as part of this amendment.

Source: http://blog.norml.org/2017/07/27/senate-committee-passes-amendment-to-protect-medical-marijuana/