There are no less than seven states that have various levels of medical and recreational marijuana initiatives up for consideration this election year. However, Florida presents the most intriguing economic development prospect of those states based purely on the State’s population and demographics. If you or your business is interested in engaging in Florida’s medical marijuana industry, or want further clarification on exactly what you will be voting on, below are five things you need to know about the 2016 proposed Amendment 2 and the likely regulatory environment to follow. 

But first, how did we get here?

In 2014, 57.62% of Florida voted to approve an amendment to its State constitution that would have provided access to medical marijuana as an alternative form of treatment. Unfortunately, the 2014 amendment effort failed falling just short of the 60% needed to pass a constitutional amendment in the State of Florida.

However, the groundswell of support for medical marijuana in the State of Florida has again manifested itself in a 2016 ballot initiative that has already secured far in excess of  the 683,149 minimum signatures necessary to appear on the November ballot. Public polling results on Amendment 2 demonstrate the changing attitude towards medical marijuana in the public conscious. Many observers are optimistic that the 60% hurdle will be cleared this November based in part on the anticipated higher voter turnout for the 2016 for the presidential election.

With that background, here are the 5 things you need to know about Amendment 2:

1) The proposed definition of “Debilitating Medical Condition” 

Florida’s proposed Amendment 2 defines “Debilitating Medical Condition” in as follows:

“Debilitating Medical Condition” means 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.”

In 2014, Amendment opponents argued against the loosely worded definition of “Debilitating Medical Condition”, which prompted the more restrictive version presented in the 2016 version that includes the qualifying language for non-specified conditions as: “or other debilitating medical conditions of the same kind or class as or comparable to those enumerated.” 

Illustrating the delicate balancing of interests on the issue, the 2016 version of Amendment 2 has received criticism for narrowing the field of conditions that medical professionals can specifically prescribe medical marijuana treatment. Only time will tell what other conditions physicians will be willing to treat under this more narrow definition or how the regulations promulgated by the Florida Department of Health may be a factor in the actual conditions treated should the Amendment 2 become law. 

2)  Amendment 2 provides broad regulatory authority to the Florida Department of Health

“The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients. It is the duty of the Department to promulgate regulations in a timely fashion.”

Amendment 2 specifically defines the role of the Florida Department of Health to issue reasonable implementing regulations and oversight of medical marijuana generally within the state, including regulations that address:

  • Procedures for the issuance and annual renewal of qualifying patient identification cards;
  • Procedures establishing qualifications for caregivers and issuance of caregiver identification cards;
  • Procedures for the registration of Medical Marijuana Treatment Centers (MMTCs) and MMTC basic operating standards; and
  • A regulation that defines the amount of marijuana that could reasonably be presumed to be an adequate supply for the qualifying patient’s medical use, based on the best available evidence.

While it is customary for a law passed by a state legislature or state constitutional amendment to provide rulemaking authority to an executive agency, a plain language reading of the Amendment provides fairly broad rulemaking authority to a state agency subject to conservative Republican Governor Rick Scott's direction. Combined with the Florida legislature’s failure to effectively act independently on medical marijuana, it would seem likely that the implementing regulations issued by the Florida Department of Health would like place Florida on the more conservative side of medical marijuana states. 

An additional concern of providing the Department of Health such broad latitude in regulating medical marijuana is the quagmire and failure to take appropriate action following the passage of the Compassionate Medical Cannabis Act of 2014. It has been more than two years since the passage of Charlotte’s Web law and not a single patient has received the much needed treatment authorized by the act. Licenses to grow the Charlotte’s Web strain were finally issued in November 2015. *(UPDATE: 8/18/16  Florida now has two operational medical marijuana dispensaries serving patients registered in the Florida Department of Health Compassionate Use Registry.) 

However, this concern is somewhat addressed in Amendment 2 by providing the Department six months after the effective date of the Amendment (potentially January 3, 2017) to issue the implementing regulations. Likewise, Amendment 2 requires that the Department commence issuing patient identification cards and registering MMTCs no later than nine months following the effective date of the amendment; which would likely be in September 2017.

Amendment 2 also specifically provides the citizens of the State a private right of action against the Department of Health to force promulgation of the regulations should the foregoing deadlines not be met. Including this right of action in the Amendment short circuits any challenges to standing for a Florida citizen to seek judicial relief to force the Department to take action.  

3)  “Physician certification” requirements and basic procedure

Should Amendment 2 pass, an individual must first obtain a “physician certification” to become a “qualifying patient” able receive medical marijuana treatment. A physician certification is a written document signed by a physician stating that in the physician’s professional opinion that 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 examining physician can only provide the certification following a full physical examination and assessment of the patient’s medical history.

The physician certification also includes the proposed duration of treatment. For minors to receive a physician certification, there must also be written approval from a parent or guardian.  

4)  Amendment 2 contains no provision for limited home growth of cannabis

Amendment 2 provides no provisions for the limited home growth of marijuana for medical treatment. The lack of permissive medical home grows has encountered criticism for potentially creating a monopolized system of medical marijuana production whereby citizens are only able to obtain medical marijuana from state “blessed” providers. 

By comparison, the State of Colorado has included in its medical marijuana laws the ability for citizens to grow a small amount of cannabis plants as a means to produce their own medicine. It remains to be seen whether the citizens’ rights to maintain a small amount of home grown cannabis plants will prove to be create a significant law enforcement burden in the long run. 

5) Amendment 2 provides no special accommodations for medical marijuana patients and no requirement for insurance reimbursement of medical marijuana treatment. 

Amendment 2 provides that no special accommodations be made for medical marijuana and its users. Specifically, there is no requirement that accommodations be made for the on-site consumption of medical marijuana at governmental institutions and correctional institutions; and employers also have no obligation to provide any additional consideration to employees’ medical marijuana treatment while on the job. 

Amendment 2 also specifically mandates that there is no requirement for health insurance provides or governmental agency to reimburse medical marijuana patients for costs related to their treatment. 

While these mandates seem reasonable in light of the complicated federal, state and local medical marijuana regulatory regime, the underlying sentiment questioning medical marijuana as a “legitimate” treatment option cannot be ignored. Perhaps as the collective national perception of medical marijuana continues to evolve, we will begin to see a normalization of cannabis’ role in the healthcare system.  

For more information regarding Florida’s Amendment 2 and medical marijuana, contact Blake M. Trueblood at info@truebloodlawgroup.com or call (954) 302-8610 for a consultation.

This information has been prepared by the Trueblood Law Group, P.A. for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.