Matthew Ginder of Greenspoon Marder, P.A. writes……

In 2014, Florida Governor Rick Scott signed into law SB 1030, known as the “Compassionate Medical Cannabis Act of 2014”. The law provides limited access and protection to qualifying individuals seeking to alleviate certain severe medical conditions with the use of “low-THC cannabis”. In 2016, Florida’s Legislature amended the Compassionate Medical Cannabis Act, by extending access of medical cannabis to include individuals who have been diagnosed with a “terminal condition”.  These two laws comprise of Florida’s current medical cannabis program.  Although the program is in the early operational stages, the restrictions and hurdles imposed by law will result in limited access of medical cannabis to a narrow category of patients.  This coming November, Florida voters will have the opportunity to overhaul the medical cannabis program by voting on the ballot initiative titled the “Use of Marijuana for Debilitating Medical Conditions”, commonly referred to as Amendment 2.

This article will compare and contrast the main components of Florida’s current medical cannabis program to the ballot initiative that seeks to broaden it.

Eligible Patients

  • Under Current Medical Cannabis Law

In order to become eligible to access “low-THC cannabis” and medical cannabis, an individual must be a resident of Florida and be deemed a “qualified patient”.  The law originally allowed for access to “low-THC cannabis” for “qualified patients” who suffer from “cancer, or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms”.  The“low-THC cannabis” must contain 0.8% or less of THC (the psychoactive ingredient in the cannabis plant) and more than 10% of CBD (or cannabidiol, a non-psychoactive compound found in cannabis).

In 2016, Florida’s Legislature amended the Compassionate Medical Cannabis Act by extending the definition of a “qualified patient” to include an individual who has been diagnosed with a “terminal condition”.  Florida law defines “terminal condition” as including an irreversible “progressive disease or medical or surgical condition that causes significant functional impairment” that will result in death within one year after the diagnosis, if the condition runs its normal course. If the individual is found to be “eligible” as a terminally-ill patient then he or she is eligible to receive an order for “medical cannabis”, which may include the psychoactive ingredient of THC.

  • Under Amendment 2

There are four notable differences between qualified patients under Florida’s current medical cannabis law and Amendment 2.  First, Amendment 2 eliminates the language defining qualified patients as residents of Florida.  This subtle change is significant for Florida due to the large population of individuals who live or visit the state part of the year.  Next, Amendment 2 adds the following “debilitating conditions” that are not included in existing law:

(a) glaucoma,
(b) positive status for human immunodeficiency virus (HIV),
(c) acquired immune deficiency syndrome (AIDS),
(d) post-traumatic stress disorder (PTSD),
(e) amyotrophic lateral sclerosis (ALS),
(f) Crohn’s disease,
(g) Parkinson’s disease, and
(h) multiple sclerosis.

Third, Amendment 2 provides limited discretion to physicians for determination of a “qualifying condition” in addition to those enumerated.  If a physician determines that a patient suffers from a medical condition of the “same kind or class as or comparable to those enumerated” and for which that physician “believes that the medical use of marijuana would likely outweigh the potential health risks for a patient”, then a patient will be eligible for medical marijuana.  Finally, Amendment 2 does not limit the type of medical marijuana accessible to qualified patients as it does under current law.  All of these changes will create broader patient access to a greater variety of medical marijuana.

Process for Becoming Eligible to Access Medical Cannabis

  • Under Current Law

Under the current law, there are several necessary steps required before a physician can order “low-THC” or medical cannabis for his or her patient.  First, a physician must meet general requirements.  To that end, a physician must be licensed with the state as a physician under Chapter 458 of the Florida Statutes or osteopathic physician under Chapter 459.  A physician must also successfully complete an eight hour “Compassionate Medical Cannabis CME Course” provided by the Florida Department of Health (the “Department”).

Next, to order “low-THC” or medical cannabis a physician must have a pre-existing relationship with the patient.  Indeed, a physician may only order medicine for a patient if the physician has been treating the patient for the immediately preceding three (3) months.  For patients under 18 years old, a second physician must be seen and concur with the primary physician’s determination.  Similarly, for patients with a terminal condition, the patient’s diagnosis must be confirmed by a second physician who specializes in that terminal condition through an independent consultation with the patient.

If the necessary physicians determine that the risks of treating the patient with “low-THC” or medical cannabis are reasonable in light of the potential benefit to the patient, they then must receive informed written consent from the patient.  For patients that qualify for “low-THC”, a physician must first explain to the patient the effectiveness of the treatment, medically acceptable alternatives, and the potential risks and side effects before receiving informed written consent.  For patients with a terminal condition, they must have considered all other treatments currently available by the U.S. Food and Drug Administration for their terminal condition, and provide a signed written consent statement attesting to this fact.

Once all of these steps are completed, the qualified physician must then submit an order for the patient to the state’s Compassionate Use Registry.  The patient is then able to obtain a maximum 45-day supply of either low-THC or medical cannabis from a state-approved dispensing organization.

  • Under Amendment 2

Amendment 2 establishes a much different process for a qualified patient to access medical marijuana through his or her physician.  First, Amendment 2 more broadly defines a physician as “a person who is licensed to practice medicine in Florida.”  Next, a qualified patient under Amendment 2 is not required to have a pre-existing relationship with his or her physician before becoming eligible to access the medicine.  Instead, Amendment 2 requires that a physician conduct a “physical examination and a full assessment of the medical history of the patient”.  Following the examination, a physician must determine that in his or her professional opinion, “the patient suffers from a debilitating medical condition, that the medical use of marijuana would likely outweigh the potential health risks for the patient”.  The physician is also required to determine how long he or she recommends the medical use of marijuana for the patient.

Once a physician determines that a patient qualifies for medical marijuana, he or she will then issue a written certification to the patient attesting to such.  For patients that are minors, a parent or legal guardian must consent in writing.  Following the issuance of the “physician certification”, the Department or its successor agency will be in charge of issuing identification cards to qualifying patients.  The identification card will permit patients to obtain medical marijuana from a registered dispensary.

Organizational Structure for Cultivating, Processing, and Dispensing Medical Cannabis

  • Under Current Law  

Florida law has mandated a vertically integrated system for cultivating, processing, and dispensing medical cannabis.  Indeed, each step of the process must be conducted by a “dispensing organization” that is approved by the Department.  Initially, Florida law limited the amount of approved dispensing organizations to five (5).  In November of 2015, the five (5) winning applicants were announced.  In 2016, the law was amended to allow the approval of additional dispensing organizations who successfully challenged the selection process.  Additionally, upon the registration of 250,000 active qualified patients, the Department is required to approve three (3) more dispensing organizations.  Currently, there are six (6) approved dispensing organizations, two (2) of which have been authorized to conduct sales to qualified patients in Florida.

  • Under Amendment 2  

It is too early to determine whether or to what extent the organizational structure for cultivating, processing, and dispensing medical marijuana under Amendment 2 will differ from existing law.  Amendment 2 offers significant flexibility for establishing the organizational structure for the production and distribution of medical marijuana.  Indeed, Amendment 2 establishes “Medical Marijuana Treatment Centers” (MMTC).  MMTCs are defined broadly to include an entity that “acquires, cultivates, possesses, processes…., transfers, transports, sells, distributes, dispenses, or administers marijuana…”  By using the operative term “or”, Amendment 2 allows for the possibility of independently registered entities that perform specific functions along the production and distribution chain.  Thus, for example, a cultivation facility and dispensary may be independently owned and operated.  Additionally, Amendment 2 allows for the possibility of new registered entities, such as an entity that transports medical marijuana to other registered entities or patients.  Finally, Amendment 2 does not identify the amount of MMTCs permitted in Florida. The precise amount and organizational structure of MMTCs will be determined by Florida’s Legislature and the Department following the passage of Amendment 2.

Conclusion

 The fate of Amendment 2 will be decided by Florida voters at the ballot box come November.  Amendment 2, like all constitutional amendments in Florida, requires a sixty percent (60%) passage rate.  If Amendment 2 passes, patient access to medical marijuana will greatly expand.  Moreover, Florida’s medical marijuana program will look much different than the program currently in existence.  And while Amendment 2 has created a general framework for the new program, much of the work will be left to the Florida Legislature and the Department.

Contact Matthew Ginder At Greenspoon Marder