October 2017 - Volume 14 - Issue 4 | Friday October 20, 2017
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Florida and Medical Marijuana: How We Got Here and Where Are We Going?

How we got here

Well, it took the Florida Legislature several tries to enact legislation reflecting the public’s will concerning the use of medical marijuana in this state. However, during the Special Session held in June, the 2017 Florida Legislature appears to have accomplished this objective. Before discussing what happened earlier this year, it is helpful to recall how it evolved.
 
Over the past 20 years, a majority of states have passed legislation authorizing their citizens to possess and use marijuana. In some states, the legislatures enacted measures addressing the use of marijuana only for medical purposes, so-called “medical marijuana”. Other states have also permitted recreational use of marijuana.
 
Florida’s response to the growing trend to legalize some uses of marijuana has been slow. The Florida Legislature resisted addressing this issue. Thus, in 2014 a petition drive gathered enough signatures to put a proposed amendment to the Florida Constitution that would have legalized certain medical uses of marijuana. Although the amendment was approved by 57% of the voters in that off-year election, that fell short of the 60% approval required for adoption.
 
The Florida Legislature passed and Governor Scott has signed the "Compassionate Medical Cannabis Act of 2014" (the “Compassionate Care Act”). Section 381.986, Florida Statutes. This legislation permitted a limited number of patients to obtain marijuana legally to treat a limited range of medical conditions. In many peoples’ view, the Compassionate Care Act did not go far enough. For example, it authorized the growing, production, and distribution of a relatively low potency strain of marijuana (referred to as “Charlotte’s Web”), limited the medical conditions for which it could be prescribed, and restricted the number of vertically integrated organizations (i.e., organizations that are licensed to grow, process, and distribute marijuana) that could enter this business.
 
Those who supported making medical marijuana available to a broader section of the population went back to the drawing board, initiated another petition drive, and were able to have another proposed amendment to the Florida Constitution placed on the ballot in 2016 (“Amendment 2”). Unlike the 2014 ballot initiative, Amendment 2 received the approval of over 70% of those voting, thereby automatically becoming part of the state’s constitution. As a result, during its recent Special Session, the Florida Legislature passed enabling legislation that Governor Scott is committed to signing. Senate Bills 6A and 8A (Medical Marijuana Registry and Medical Use of Marijuana, respectively, and collectively referred to herein as the “2016 Act”).
 
The Compassionate Care Act authorized those patients diagnosed with a “qualifying condition”, i.e., cancer, epilepsy, glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, MS, or “other debilitation medical conditions of the same kind or class or comparable to those enumerated” to receive so-called “Low-THC” cannabis. While all of these “qualifying conditions” are included in the 2016 Act, it also includes patients who have chronic pain relating to one of these “qualifying conditions” or are terminally ill. Further, there is no longer a limitation regarding the strength of the cannabis that may be administered.
 
Under the 2016 Act, eligibility to receive medical marijuana has been limited to those individuals who not only have a “qualifying condition”, but who also are (i) Florida residents, (ii) registered on the Department of Health’s Medical Marijuana Use Registry, and (iii) received Medical Marijuana Use Registry identification cards. However, once an individual has received a Registry identification card, there is no additional waiting period before they can receive medical marijuana.
 
In order to prescribe medical marijuana, an authorized physician (i.e., one who has undergone a mandatory training program and received authorization to prescribe medical marijuana) must personally supervise a patient’s examination. As part of that examination, the physician must determine that the patient has a “qualifying condition”, and the benefits likely to be derived from his/her using medical marijuana outweigh the risks associated with this treatment. Although regulations still need to be adopted, the 2016 Act permits an authorized physician to give a patient one (1) initial seventy (70) day supply and two (2) refills of equal duration of medical marijuana.     
 
As with any new law, Amendment 2 and the 2016 Act leave many unanswered questions that are likely to impact patients in Florida who are eligible to receive medical marijuana, physicians who are authorized to prescribe this substance, hospitals and other healthcare facilities charged with responsibility for treating these patients, their employers, law enforcement agencies, and others in the community. Patients with “qualifying conditions”, physicians authorized to certify the need for medical marijuana, and entrepreneurs who believe this presents a business opportunity all would be well served to work with legal counsel and consultants who have knowledge concerning the status of medical marijuana in Florida.
 
Where are we going?
“Florida and Medical Marijuana; How we got here”, briefly reviewed the efforts in Florida to legalize medical marijuana. Now we will review some additional provisions of the 2016 Act. We will also raises some questions that the 2016 Amendment and the 2016 Act have left unresolved.
 
No Waiting Period. One of the most significant changes in the 2016 Act is the elimination of 90-day waiting period required under the Compassionate Care Act. Thus, a patient who is examined by an authorized physician and determined to have a “qualifying condition”, will be eligible to receive medical marijuana immediately.
 
Identifying a “qualifying condition”. Both the Compassionate Care Act and the 2016 Act include within the definition of a “qualifying condition” any “other debilitation medical conditions of the same kind or class or comparable to those enumerated” in the statute. This appears to leave authorized physicians with wide latitude in determining whether a patient who does not have one of the enumerated “qualifying conditions” should be prescribed medical marijuana. However, until either the Department of Health, Board of Medicine, or Board of Osteopathic Medicine issues further guidance, authorized physicians should not seek to push the envelope concerning which patients should receive this drug.
 
No Smoking. The 2016 Act also addressed the issue of how medical marijuana may be dispensed to a patient. Patients may receive medical marijuana in the form of edibles and in tamper-proof vaping receptacles. Medical marijuana may not be dispensed in a form that may be smoked.
 
Licensed Growers, Processers, and Dispensaries. The Compassionate Care Act established a vertically integrated program for licensees to grow, process, and distribute medical marijuana. The 2016 Act has retained this closed vertically integrated licensing system, with some important differences. First, ten (10) additional licensees (five (5) in July and another five (5) in October) will be added to the seven (7) organizations that currently are licensed in Florida. Thereafter, for each additional 100,000 patients added to the Medical Marijuana Use Registry, four (4) additional licenses are to be issued. Second, each licensee will be permitted to open twenty-five (25) dispensaries around the state. What is not clear is whether local governments will be able to ban or specifically regulate where dispensaries in their jurisdictions can be located.
 
Role of Telemedicine. As noted in Part 1, the 2016 Act expressly requires an authorized physician to personally supervise the examination of a patient in order to determine whether he/she has a “qualifying condition”. What remains unclear is whether an authorized physician also must personally examine a patient seeking refills of their medical marijuana prescription. The Florida Board of Medicine has scheduled a public hearing on this question in early August.
 
Federal Enforcement. Since the early 1970’s marijuana has been classified as a Schedule 1 drug – one with no known medicinal or other legitimate use. Despite efforts during the Obama Administration to decriminalize the possession of small amounts of marijuana, with some support from Congress, that classification remains in effect today. Members of the Trump Administration, particularly Attorney General Sessions and HHS Secretary Price, have indicated that they are opposed to any effort to reclassify marijuana. Indeed, Attorney General Sessions has indicated his view that all violations of federal law should be prosecuted, including those involving possession of marijuana. Thus, an important unanswered question remains concerning what position this administration will take regarding Florida and the other states that have legalized the production, processing and distribution of some form of medical marijuana. (Those states that have legalized the recreational use of marijuana should have even greater concern with the federal government’s position.) Some of the questions raised by this conflict between federal and Florida law include:
- Will the seven (7), soon to be seventeen (17) licensees be prosecuted?
- What about the physicians who have received authorizations to prescribe medical marijuana?
- Will patients with Qualified Conditions risk arrest and prosecution for possession of marijuana?
 
Tourists. Amendment 2 and the 2016 Act authorize a limited class of Florida residents to possess and consume certain forms of medical marijuana. It seems inevitable that there will be tourists and business travelers who will come into this state in possession of medical marijuana legally obtained in another jurisdiction. To date, there has been no guidance concerning how law enforcement will treat these individuals. Similarly, what will happen if one of these travelers either forgets to bring or consumes their supply of medical marijuana while in Florida, will they be able to obtain a “refill”?
 
Amendment 2 and the 2016 Act have left many more questions unanswered. For example, how are employers supposed to react when employees are prescribed medical marijuana; will travelers in airports be permitted to possess legally obtained marijuana (the Greater Orlando Aviation Authority is considering a policy to have these individuals arrested); will medical marijuana ever be covered by health insurance; and will marijuana dispensaries be classified as “clinics”?
 
While legalizing medical marijuana promises to bring many Floridians relief, in addition to the clinical questions surrounding its use, there are many legal and practical questions that need to be considered. Physicians and lay persons who are looking at this as a business opportunity will be well advised to seek the assistance of legal counsel and other consultants who have expertise in this area.
 

Stephen H. Siegel, Esq., Of Counsel, Broad and Cassel, can be reached at shsiegel@broadandcassel.com or (305) 373-9424.

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