Amendment 2, which passed during the 2016 General Election, creates more broad use of medical marijuana than that which was authorized under existing statutes adopted in 2014 and subsequently amended in 2015 and 2016. The amendment allows the medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician. A debilitating medical condition is defined as: “cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as, or comparable to, those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” This definition will have the effect of authorizing prescriptions for a wider range of patients than under existing statutes. The language also allows use of the full cannabis plant for the treatment of all qualifying conditions, as opposed to only terminal conditions under current statutory law.
A prescribing physician under the amendment is defined simply as “a person who is licensed to practice medicine in Florida.” Another potential expansion includes the creation of “medical marijuana treatment centers.” Such a center is defined as “an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department.” It is unclear how these centers may differ from the currently existing dispensing organizations.
Finally, the amendment creates the term “caregiver,” which is a person of at least 21 years of age who may assist a qualifying patient. Caregivers must obtain an identification card. The Department of Health is given authority to limit the number of caregivers a patient is allowed to have and how many patients a caregiver can assist.
Amendment 2 leaves a considerable amount of detail to be filled in through legislation and rulemaking. The full picture of how the amendment will be implemented will not be clear until after the 2017 Legislative Session and subsequent rulemaking process. The Department of Health is required to issue implementing regulations within six months or else any Florida citizen will have standing to seek judicial relief to compel compliance. The Legislature will also need to address the portions of the amendment that are inconsistent with current statutes.
About the Authors:
John L. Wharton is a member of Dean Mead’s Administrative Law and Business Litigation departments and the Government Relations and Lobbying Industry Team. He represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 30 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; utility law and utility regulation; professional regulation and environmental law. He may be reached at firstname.lastname@example.org.
Brittany Finkbeiner focuses on Real Property and Administrative Law. Prior to going into private practice, Ms. Finkbeiner served as a chief attorney for the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes. In addition, she’s worked at the Florida Department of Economic Opportunity, The Florida Senate Judiciary Committee and as a legislative aide for the Florida Senate. She may be reached at email@example.com.