Ohio Gov. Mike DeWine issued an emergency medical order on Wednesday temporarily banning the sale of “intoxicating hemp” in Ohio.
“This crisis is getting worse,” DeWine said in explaining the order that takes effect next Tuesday. “I’m not going to sit by and let this continue.”
The governor’s response to the “crisis” may be short-lived.
That’s because Republican legislators in 2021 changed state law limiting how long emergency health orders issued by the governor could remain in effect.
Under the 2021 law – which DeWine is testing for the first time – the governor’s health order can only remain in effect for 60 days. After that, the legislature must vote to extend it. Republican lawmakers passed the new time cap in response to the governor’s use of health orders during the pandemic to close schools, businesses and other everyday destinations. Lawmakers had to override a DeWine veto of the restriction to get this law in place.
Lawmakers also have the option of repealing the intoxicating-hemp ban after 30 days if a majority votes to do so. One Youngstown-area lawmaker, Republican Rep. Tex Fischer, said he plans to introduce a resolution repealing DeWine’s order as soon as he can get one drafted.
Fischer said in an interview Thursday that if DeWine unilaterally says he can ban THC beverages, he could eventually decide to try to ban something like smoking. DeWine indeed has spent decades in public office trying to restrict access to tobacco, such as when, as state attorney general a decade ago, he pressured drugstores to stop selling tobacco products, citing their negative health effects. He also unsuccessfully fought the legislature two years ago after it banned cities from banning the sale of flavored tobacco in their borders.
“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: “absurd” that kids can buy candy drugs
DeWine’s order applies to intoxicating THC products that aren’t legally considered marijauna. These products – which are increasingly sold in convenience stores, grocery stores, bars and restaurants – operate in a legal gray area created by a 2018 federal law and a 2019 state law that were meant to legalize industrial hemp. There is no strict legal limit on who can buy such products, although some businesses only sell them to those 21 and up, the same age limit for legal recreational marijuana in Ohio.
Some of the products, DeWIne said, are particularly appealing to children. The governor displayed three sets of candies at Wednesday’s press conference announcing his legislative order. In each set, one candy was a popular store brand while another was a knock-off version containing THC.
He was joined by Dr. Hannah Hayes of Nationwide Children’s Hospital in Columbus, who described a rising number of young children who have been hospitalized and treated for THC overdoses.
DeWine first called on the legislature to act on unregulated THC products in January 2024. The Ohio Senate approved a bill in May that would funnel most “intoxicating hemp” products to state-licensed marijuana dispensaries, with an exception for hemp beverages, which could be sold at businesses that sell alcohol.
But the bill has stalled in the House. DeWine apparently has gotten tired of waiting.
“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 said.
DeWine’s health order draws lawsuit
Besides the potential legislative push to cut DeWine’s intoxicating-hemp order short, it’s also facing a challenge from a different direction.
Three businesses, including a vape shop in the Cincinnati area, filed a lawsuit in Columbus Thursday arguing that DeWine lacks legal authority to ban intoxicating-hemp products, as shown by his previous attempt to get the law changed.
They asked a Franklin County judge to block the ban from taking effect.
“The retailers, manufacturers, and distributors of hemp products employ thousands of workers who will be left without jobs if the Executive Order takes effect,” the lawsuit says.
Larger hemp-related companies, meanwhile, might be able to just wait DeWine’s order out.
Jake Bullock is the CEO of Cann, a nationally distributed, hemp-derived THC drink that’s marketed and sold in a manner similar to alcohol, including limiting sales to people who are at least 21.
Bullock said he hopes that DeWine’s order will spur lawmakers to crack down on less savory companies, such as those selling knock-off candy that DeWine referenced in his press conference.
But in the meantime, he said, it leaves his company’s distributors and retailers in limbo as they wait to see how state enforcement will work, whether a judge might block the order or whether the legislature might step in.
“It probably makes sense for us to keep product in the market and just [put it] in a warehouse,” he said.
Could this be DeWine’s last public health fight?
Lawmakers such as Fischer believe DeWine is overstepping the power of his office. But legislative leaders seemed more open to DeWine’s order this week as a way to force a legislative solution.
Both House Speaker Matt Huffman and Senate President Rob McColley said Wednesday they hoped the order would push the House and the Senate to make some kind of deal.
“There’s no testing regime, no standards,” McColley told reporters on Wednesday. “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.”
Rep. Dani Isaacsohn, the top Democrat in the Ohio House, told reporters before DeWine’s order was released that the governor is right that lawmakers need to do something about intoxicating hemp.
“Depending on what the language specifically is, I think there could be some legal challenges,” Isaacsohn said. “But our job in the legislature is to keep the community safe and to keep kids safe.”
Sen. Andy Brenner, a Columbus-area Republican who was a driving force in limiting DeWine’s power to issue emergency health orders, said the governor’s new order was less sweeping than he’d initially expected.
In that sense, Brenner said the curb on health orders worked 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.”