Greetings,

As you may not know, Ohio's Cannabis freedoms granted in 2023 are being rolled back significantly including making it a felony to possession any cannabis not grown in your home or manufactured & purchased by an Ohio bullshit weed thingy (Cultivator and Dispensary). The remedy may have to be for you to sue us. I punched this into AI today:

Take on the role of a Dormant Commerce Clause expert cannabis attorney representing the Michigan Cannabis Industry Association: The attached bill will soon pass in Ohio called SB56 (attached) that would make possession of cannabis purchased in Michigan (and every other state but Ohio) a felony. Advise your clients on potential legal remedies including asking a judge for an injunction and lawsuit on dormant commerce clause grounds.

This is what I got back:

Ohio SB 56 appears to be a strong candidate for a Dormant Commerce Clause (DCC) challenge because it facially discriminates against cannabis sourced from other states and effectively reserves the Ohio consumer market for in‑state licensees. As counsel to Michigan operators, the core remedies would be a federal lawsuit for declaratory and injunctive relief and a motion for preliminary injunction to block enforcement of the “Ohio‑only” sourcing and possession provisions as unconstitutional economic protectionism.​

What SB 56 Does to Out‑of‑State Cannabis

• SB 56 would redefine lawful “adult‑use marijuana” so that only cannabis obtained from Ohio‑licensed dispensaries or grown as authorized home grow is lawful; cannabis acquired from any out‑of‑state dispensary would be “contraband.”​​
• The bill therefore makes possession in Ohio of cannabis lawfully purchased in Michigan or any other state illegal, while possession of functionally identical Ohio‑sourced products remains legal.​

Dormant Commerce Clause Theory

• The DCC forbids states from enacting protectionist laws that discriminate against or unduly burden interstate commerce in favor of in‑state economic interests, absent clear congressional authorization.​
• Federal appellate courts have already applied the DCC to state marijuana markets, striking down residency requirements that favored in‑state owners over out‑of‑state investors (e.g., the First Circuit’s decision invalidating Maine’s residency requirement for medical marijuana dispensaries).​
• SB 56 is arguably more overtly protectionist: it allows commerce in cannabis but flatly bans imported cannabis, thereby closing Ohio’s consumer market to Michigan and all other out‑of‑state producers.​

Likely Claims in a Federal Lawsuit

Your clients (Michigan cultivators, processors, and retailers and potentially their trade association) could bring suit in federal district court (likely S.D. Ohio) seeking:

• A declaration that SB 56’s provisions treating out‑of‑state cannabis as contraband and criminalizing its possession violate the DCC because they:
  • Are facially discriminatory against interstate commerce (only Ohio‑origin cannabis may be possessed);​
  • Have a protectionist purpose and effect—channeling all Ohio demand to Ohio licensees and excluding competing out‑of‑state suppliers.​
• A declaration that, even if not deemed facial discrimination, the provisions impose an undue burden on interstate commerce that is clearly excessive in relation to any legitimate local benefits, under Pike balancing.​
• *A permanent injunction prohibiting Ohio from enforcing these specific sourcing/possession restrictions as to cannabis lawfully purchased in other states.*​

Motion for Preliminary Injunction

You would file a motion for preliminary injunction as soon as the law is signed (or shortly before the effective date), arguing:

1. Likelihood of success on the merits
   • The statute draws an explicit line between in‑state and out‑of‑state cannabis and declares the latter contraband, while allowing the former, which is classic facial discrimination.​
   • Recent federal decisions in the marijuana context confirm that the DCC applies even though marijuana remains federally illegal, rejecting the argument that the Controlled Substances Act implicitly “authorizes” state discrimination.​
2. Irreparable harm
   • Michigan licensees will lose access to Ohio customers and the Ohio‑adjacent tourist trade, including existing cross‑border business from Ohio consumers who regularly purchase in Michigan.​​
   • Criminalization of Ohio possession of Michigan‑sourced cannabis will chill lawful commerce and damage goodwill and brand value in Northwest Ohio and along major corridors.​
3. Balance of equities
   • Ohio can still enforce neutral health and safety regulations and its criminal laws against impaired driving, diversion to minors, and unlicensed sales even if import‑based discrimination is enjoined.​
   • Your clients, by contrast, suffer immediate competitive exclusion from a neighboring market solely on the basis of geographic origin.​
4. Public interest
   • The public has a strong interest in the enforcement of constitutional limits on state economic protectionism and in avoiding needless criminalization of adults possessing state‑legal products purchased in other legal jurisdictions.​

Standing and Plaintiff Strategy

• Direct economic injury*: Michigan operators who sell significant volumes to Ohio customers (identified via sales data, ZIP codes, and marketing) can show concrete economic harm from being cut off from that customer base.​*
• Association standing*: The Michigan Cannabis Industry Association can assert associational standing on behalf of members who are injured, provided at least one member has standing and the relief sought is injunctive/declaratory, not individualized damages.​*
• Potential Ohio co‑plaintiffs*: Adding Ohio consumers or businesses harmed (e.g., Ohio retailers near the border that benefit from cross‑border traffic or Ohio hemp/cannabinoid operators affected by related SB 56 provisions) can bolster the narrative and address any forum‑based prudential concerns.​​*

Anticipated State Defenses and Responses

• “No interstate market because cannabis is federally illegal”**: Courts like the First Circuit have rejected the argument that the CSA forecloses a DCC claim; they reason that Congress did not clearly authorize state economic discrimination, and state‑legal cannabis regimes themselves presuppose an economic market.​
• Public health and safety*: Ohio may assert interests in potency control, testing, youth access, and impaired driving. Your brief should concede those interests as legitimate but argue they can be achieved through non‑discriminatory means, such as:​*
  • Setting uniform THC limits and testing standards and requiring proof of compliant testing for any cannabis possessed or sold in the state, regardless of origin.​
  • Enforcing neutral packaging, age‑verification, and impaired‑driving laws applicable to all cannabis, not just out‑of‑state products.​​

Practical Next Steps for Your Clients

• Retain Ohio‑admitted co‑counsel and identify the most favorable federal district and judge for filing.​
• Begin gathering evidence of:
  • The volume and economic significance of Ohio‑resident purchases in Michigan cannabis stores;​​
  • Business plans and investments made in reliance on ongoing cross‑border commerce;​
  • The lack of any meaningful safety difference between Michigan and Ohio tested products (mirroring testing and track‑and‑trace standards).​​
• Prepare draft complaint and TRO/PI papers keyed to the specific SB 56 sections that:
  • Declare out‑of‑state cannabis contraband and criminalize its possession;​
  • Functionally reserve lawful possession to cannabis sourced from Ohio‑licensed facilities.​

If you want, the next step can be to outline specific complaint counts and proposed injunctive language tied to the exact Revised Code sections SB 56 would amend.