Ohio’s medical marijuana companies have repeatedly cited trade secret exemptions to keep sensitive information from the public for what they say are proprietary reasons. Activists and patients worry that vital information is being kept hidden.
Marijuana companies have repeatedly cited trade secret exemptions to keep state agencies from releasing documents the companies want to keep out of the public eye.
Industry representatives say they are protecting proprietary information that could aid competitors in a cutthroat business, but advocates and patients worry that vital information is being kept under wraps.
Greenleaf Apothecaries filed a restraining order in July to prevent the State of Ohio Board of Pharmacy from releasing information regarding an investigation into the company’s ownership. Greenleaf said releasing that information would expose “confidential, proprietary and sensitive trade secret information.” Greenleaf resolved the case late last year.
Justice Grown Ohio filed a records request in August for approved applications after its own application for a marijuana processing license was denied because it received a low score. Three medical marijuana companies, including Columbus-based Schottenstein Aphria, marked their applications “trade secrets” to prevent their release. A case is ongoing in Franklin County Common Pleas Court.
Justice Grown did not respond to messages seeking comment.
In August, medical marijuana patient and activist Anthony Cordle asked the Ohio Medical Marijuana Control Program for results from labs that test marijuana products. In response, some marijuana processors and cultivators said the results are a trade secret.
State officials keep those companies apprised of records requests, and “it is up to them to identify any legal concerns,” said Kelly Whitaker, public information officer for the commerce department.
Some licensees say that lab results “could allow for the reverse engineering of closely held genetically engineered strains of cannabis,” Whitaker said. Whether that information is a trade secret “is up to the courts,” she added.
Cordle sees it differently. The Far West Side man frequents social media pages where users post pictures of cannabis products that don’t appear to contain the listed ingredients. He’s threatened to take his case to the Ohio Court of Claims.
Marijuana cardholders, Cordle said, must know the process. If marijuana is found to contain any harmful chemicals, “that’s something that needs to be made public,” he said.
Some cannabis processors put QR codes on product packages that link to test results, but they are not required to do so.
A true trade secret involves information that isn’t readily available and retains value by remaining secret, said Mark Weaver, a Columbus attorney who has argued trade secret cases.
Public officials must apply trade secret exemptions narrowly by redacting only the section of a requested document that specifically deals with that trade secret, or are “inextricably intertwined” with that information, Weaver said.
The tactic works in some respects. When The Dispatch requested copies of the applications filed by medical marijuana license holders, reporters were denied access to the applications marked “trade secret” until a court case on the efficacy of that claim is resolved.
With a limited number of licenses available, Ohio’s medical marijuana industry is more competitive than most, and marijuana companies have a vested interest in keeping proprietary information out of public view, said Thomas Haren, an attorney who represented Greenleaf.
“The application process is basically explaining to the evaluators why you have competitive advantage,” said Haren. “Applicants want to protect that competitive advantage.”
Even seemingly small details provide an edge, he said. “A winning application has value insofar as it is a winning application.”
Medical marijuana companies are more apt to share complete files with state regulators if they know sensitive information won’t become public, Haren said.
Ohio’s medical marijuana industry is still in its nascent stages, said Alex Thomas, executive director of the Ohio Medical Marijuana License Holder Coalition. “The operations that are active in the program in Ohio are being innovative.”
Medicinal cannabis businesses have a duty to protect inventive ideas from competitors, he said.
But some see the exemption being applied too broadly.
“It sounds like perhaps they’re going too far in saying everything is a trade secret that involves this business,” said Monica Nieporte, President and Executive Director of the Ohio News Media Association.
Applications contain fairly banal information such as a list of owners or organizational charts. If such information is already available through business licenses or property records, or is common knowledge among rank and file employees, then it isn’t proprietary, Nieporte said.
Trade secret exemptions should cover “only the things that would truly give a competitor an edge,” she said. “General things about the business that are common knowledge that are not trade secret.”
pcooley@dispatch.com
@PatrickACooley
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