Ohio Attorney General Dave Yost suggested that the state has a slam-dunk defense against four stakeholders in Ohio’s hemp-derived THC beverage market who are trying to prevent the state from implementing a product ban later this month.
“So, this is an easy case, or at least, it should be,” the state’s chief legal officer wrote in a March 13 response to a lawsuit filed last week in the Ohio Supreme Court.
The lawsuit stems from Gov. Mike DeWine’s line-item veto of a provision in Senate Bill 56 that would have allowed businesses to continue selling hemp-derived drinks containing up to 5 milligrams of THC through the end of 2026. Instead, those products will be banned, like all other intoxicating hemp products in Ohio, beginning on March 20 because of the governor’s veto.
Two Cincinnati-based breweries, a hemp-derived THC manufacturer, and a craft beer distributor (the “relators”) filed the complaint, arguing that DeWine’s line-item veto was unconstitutional and represented “lawless executive overreach” because it erased 17 sections – spanning 15 pages of legislation – in the bill, rather than a line, and none of those sections dealt with appropriations.
Yost dismissed this argument in his response on Friday.
“The governor may veto any item in any bill making an appropriation of money,” Yost wrote. “For over a hundred years, everyone took the Constitution at its word: ‘any item’ truly meant ‘any item’ in an appropriations bill.
“But now, relators ask this court to find a hidden limitation in the Constitution’s text that apparently went unnoticed by generations of legislators, governors, and litigants. They seek to limit the governor’s line-item veto powers to appropriations items. Text, history, and tradition all show that relators are wrong. The governor may line-item veto any item – including substantive, non-appropriations items – in any bill appropriating money.”
In addition to hemp, the 130-page engrossed legislation in question makes substantial changes to the state’s voter-approved adult-use cannabis laws, including how adult-use cannabis excise tax revenue is appropriated.
The four relators in the lawsuit seek relief via a writ of mandamus that would force Ohio Secretary of State Frank LaRose to honor the legislation’s original carve-out for hemp-derived beverages that would have extended through the end of the year.
They also requested the court grant a peremptory writ of mandamus, and if needed, an alternative writ, compelling Ohio Division of Cannabis Control Superintendent James Canepa and Ohio Division of Liquor Control Superintendent Jackie DeGenova to begin drafting policies that align with the hemp-derived beverage carve-out provisions that lawmakers originally included in the legislation.
Yost argued that the relators’ complaint and emergency motion request have little substance.
“Governor DeWine properly exercised his veto power when he line-item vetoed substantive provisions of an appropriations bill regulating hemp and other cannabis products,” Yost wrote. “Relators, who wish to continue to sell their hemp products, try to disguise the weakness of their legal claims by creating an emergency. By demanding an expedited schedule and immediate relief, relators hope to sneak out with a win. The court should not be distracted by these tactics. It should deny relators’ ‘emergency’ motion for peremptory writ of mandamus and dismiss their amended complaint.”
Ohio’s move to clamp down on intoxicating hemp products aligns with a forthcoming federal ban that’s set to take effect in mid-November, which will outlaw any hemp-derived products containing more than 0.4 milligrams of THC, as well as those containing synthetic (delta-8 THC) or unnatural (HHC) cannabinoids.
Under pre-S.B. 56 policies, Ohio took a hands-off approach to regulating intoxicating hemp products that proliferated following the 2018 Farm Bill, which federally legalized the commercial cultivation of hemp. That meant products often went untested for dangerous contaminants, didn’t always have accurate labeling and could be sold to minors by unlicensed retailers in the Buckeye State.
DeWine argued in his line-item veto message that creating a temporary carve-out for hemp beverages through the end of the year would “create confusion for consumers and a lack of conformity with federal law” and continue to pose a threat to public health and safety.
The four relators argued that without an adequate off-ramp, they’d endure significant and irreparable financial harm to their businesses.
Yost argued that even though the relators have been faced with Ohio’s impending hemp THC product ban since Dec. 19, they “did nothing” until recently, making their “emergency” motion at the 11th hour questionable.
“For 11 of the 13 weeks between S.B. 56’s passage and its effective date, relators simply sat on their rights and waited,” the attorney general wrote. “They continued to manufacture and sell their soon-to-be-illegal products but made no effort to challenge the legality of Governor DeWine’s line-item veto. Then, just two weeks before the ban will take effect, relators filed this action seeking emergency mandamus relief.”
Yost called their 77-day delay “inexcusable” and “unreasonable” in his legal arguments.
