A Sandusky County court of common pleas judge has ruled that Ohio’s new law banning the sale of intoxicating hemp-derived cannabinoids except at licensed marijuana retailers is likely unconstitutional and has issued a temporary restraining order blocking the Fremont Police Department from enforcing it.
The ruling impacts only the Fremont Police Department and “all who may act in concert with them” and remains in effect only until April 28. It comes in a case brought by Seattle-based Cycling Frog, a hemp cannabinoid beverage company that sells its products throughout Ohio, including Sandusky County.
Judge Jeremiah Ray held that the new law created by the passage of Senate Bill 56 appears to violate the Dormant Commerce Clause of the U.S. Constitution. That law effectively gives the state’s licensed marijuana dispensaries a monopoly over what are federally legal hemp-derived products, Ray held. (Congress voted to radically restrict hemp-derived cannabinoids last November, but that law does not go into effect until this coming November.)
“The practical effect is to immunize Ohio’s in-state marijuana industry, which Ohio law requires to have an in-state physical presence, from out-of-state competition with respect to federally legal hemp products otherwise sold in interstate commerce,” Ray said, noting the law also discriminates against in-state businesses.
“The parallel intrastate discrimination is no defense to the interstate discrimination. Indeed, the existence of parallel intrastate discrimination makes the protectionist effect of the ordinance more acute,” he wrote. “This is because the licensed dispensaries and their attendant supply chain benefit from a lack of competition from either inside or outside Ohio. This is, thus, inherently discriminatory on its face.”
The attorney representing Cycling Frog, Andy Mayle, said he asked Ray to make the temporary restraining order a class action that would block all law enforcement agencies in the state from enforcing the law.
“That’s the next step in the case,” Mayle said. “If he does, then basically the bill—with respect to the traditional hemp industry—will not be enforceable in Ohio.”
The regulation of interstate commerce is the province of Congress, not the state of Ohio, Mayle added.
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