[co-author: Adam Remillard - Summer Law Clerk]
In Florida, the controversial fight for expanded use of medical cannabis has been led by groups of impassioned advocates who were narrowly defeated on the 2014 State ballot initiative. However, in light of Florida’s recent amendments to the Compassionate Medical Cannabis Act (the “Act”) and the resurgent constitutional referendum on Amendment 2, both patients and businesses alike should soon expect to see green in the Sunshine State. Because marijuana is still classified as a Schedule I drug under federal law—meaning it’s considered highly addictive and has no known medical benefits—the sale and use of marijuana remains illegal. Thus, states are left in a regulatory purgatory, trying to figure out how to handle the treatment of marijuana for medical and recreational uses. The potential outcome of the November election is outlined below.
What Can We Expect in November?
After the 2014 Proposal failed to garner enough support at the ballot box, advocates and lobbyists made some strategic concessions in the scope of the proposed amendment. In particular, dissenters argued that the 2014 Proposal was too vague, opening the door to abuses of medical discretion by physicians.
The pro-medical cannabis group United for Care, wielding substantial capital contributions and mass-market advertising, was instrumental in drafting the Florida Right to Medical Marijuana Initiative, Amendment 2 (the "2016 Proposal"). The key textual changes made by the 2016 Proposal include:
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a more circumscribed definition of “debilitating illness,” the central threshold for medical cannabis eligibility;
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addressing the so-called “drug dealer loophole” through an explicit authorization for the Department to limit the number of qualified patients to whom a given certified caregiver may prescribe medical cannabis; and
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an explicit statement that the 2016 Proposal would not operate to immunize physicians from malpractice claims for negligent prescribing of medical cannabis.
The 2016 Proposal will be a fierce contender when it hits the ballot this November. Considering the 2014 Proposal fell short by less than 3%, if the 2016 Proposal passes, Florida’s Constitution will codify a historic victory for pro-medical marijuana advocates and businesses. It will not, however, untangle the web of confusion surrounding the intersection of federal prohibitions on the use of medical marijuana and the permissibility of such use on a state by state basis.
What Does This All Mean?
As it stands, medical marijuana can be grown, refined, and sold to those patients who qualify under State law. Local jurisdictions across the State have either remained silent, established moratoriums to delay a decision, or enacted regulations specifying where medical marijuana can be grown and sold.
Despite all of the regulations passed, advocacy groups formed, and political posturing on the topic, dispensing organizations have not even begun dispensing and only one dispensing organization has harvested medical marijuana. Presently, only a handful of Florida doctors have been approved to order medical cannabis for patients.
The Act, as amended, and the potential changes in November, will open the door to a host of political, social and legal ramifications. Aside from the obvious impacts on criminal law, legal issues related to leasing, intellectual property, zoning, land use, employment, contracts, licensing and insurance must be monitored and reevaluated in light of the State’s developing medical marijuana regulations.
