With the passage of Issue 2, I was wondering if this meant we could grow CBD hemp for personal use too. Quick answer — no, I don’t believe Issue 2 permits home grow of high CBD hemp.

This is an oddity where I think the legislature might want to tweak the text because it’s a little silly — someone who wants CBD can find a strain that produces 0.4% THC and it’s legal. A strain that produces 0.3%, however, isn’t legal. Basically, someone who wants to grow their own CBD needs to ensure their plants make enough THC to be legal. Yes, I know that it would be unlikely that anyone would bother enforcing “your home grow plant isn’t making enough of the psychoactive components”. I am speaking purely to the letter of the law.

 

How did I reach this conclusion? Marijuana is defined in the new code:

Section 3780.01 | Definitions.
(A) (1) “Adult use cannabis ” or “cannabis ” or “marijuana” means marihuana as defined in section 3719.01 of the Revised Code.

Following that reference, the definition specifically excludes hemp — although it also says that the “mature stalks of the plant” are not considered marijuana … so trading clones would be OK?

Section 3719.01 | Controlled substances definitions.
(M) “Marihuana” means all parts of a plant of the genus cannabis, whether growing or not; the seeds of a plant of that type; the resin extracted from a part of a plant of that type; and every compound, manufacture, salt, derivative, mixture, or preparation of a plant of that type or of its seeds or resin. “Marihuana” does not include the mature stalks of the plant, fiber produced from the stalks, oils or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from the mature stalks, fiber, oil or cake, or the sterilized seed of the plant that is incapable of germination. “Marihuana” does not include “hemp” or a “hemp product” as those terms are defined in section 928.01 of the Revised Code.

Since hemp has been excluded, we need to determine how hemp is defined —

Section 928.01 | Definitions.
(C) “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a dry weight basis.

Now that we know what terms mean, you will be permitted to grow six cannabis plants.

Section 3780.29 | Home grow.
(1) Cultivating, growing, and possessing not more than six cannabis plants at the individual’s primary residence …

Cannabis means what it means from 3719.01, which excludes hemp as defined in 928.01 — so, technically, the home grow provision does not legalize individuals to grow their own high CBD, very low THC plants. Your compliant plant needs to generally produce more than 0.3% THC.

TL;DR: I believe 2.5 oz refers to the total amount of qualifying material you own at any location.

A question I’ve had, since Issue 2 limits possession of adult use cannabis to 2.5 ounces is does that mean on your person or total quantity that you own. Now, there is illegal and then there is actionable — I am curious about legal. Especially since I have not found anything that specifies dry ounces. They list types of products, including flowers. Two and a half ounces of dry material is a lot. Without a distinction between a wet ounce and a dry ounce, you may need to stagger bloom and keep your plants relatively small to stay under 2.5 wet ounces. Once a harvest dries out, you would have capacity … but the concern is moot if “possession” means “on your person when you are outside of your home”.

Existing Ohio case law established that possession doesn’t mean physically on your person while you are out.

“Constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v Wolery, 26 Ohio St.2d 316, 329, 348 N.E.2d 361 (1976)

That was in reference to receiving stolen property, but I find this case cited in drug possession cases (e.g. State v Blake, 2023-Ohio-2748). So there is precedent for finding that 3 oz at the house is a violation of the law. Now how would they know? If you’ve got three pounds piled up in your front window. If you are posting online about your huge harvest. Without probable cause, there would be no basis for a warrant and thus they couldn’t measure what you’ve harvested and stored at home.

I wouldn’t suggest taking a pictures of a giant plant. I wouldn’t suggest posting a picture of half a dozen plants deep into bloom, but I’m more cautious about stuff like that. Photograph a single really nice flower, sure. But I wouldn’t give anyone cause to believe my harvest is likely to exceeded 2.5 oz.

I expect wet material is not something you would be able to purchase at a dispensary — if for no other reason than shelf stability — so this distinction is likely only salient for home grow. Some day in the future, I will write our state legislators requesting they consider modifying the code to accommodate freshly harvested wet material.