Florida Votes: Update on Amendment 2 and Medical Marijuana

Ann K. Breitinger, Esq.

Ann K. Breitinger, Esq., Health Care and Business Law

Medical marijuana continues its pace as a hot topic in Florida since its defeat via a ballot measure in 2014 and subsequent approval in this unpredictable 2106 election.  In 2014 the ballot measure failed with 58 percent approval, just shy of the 60 percent required for a constitutional amendment.  This year, in an decisive result, Florida voters approved Amendment 2 by 71.3 percent, well above the 60 percent required.

The Florida legislature enacted Fla. Stat. § 381.986 in 2014 allowing properly licensed physicians to prescribe low THC cannabis to patients with cancer or a condition that causes chronic seizures or muscle spasms.  Further these physicians may prescribe medical cannabis to patients suffering from a condition determined to be terminal by two (2) physicians.  The Florida Office for Compassionate Use offers many resources for both physicians and patients interested in the current options of low THC cannabis and medical marijuana.  In order for physicians to order low THC cannabis or medical marijuana they must first successfully complete an eight (8) hour course and examination.  Additional requires are placed on physicians to order these products for a patient.  For example, physicians must treat the patient during the immediate preceding three (3) months to the ordering of the low THC/medical marijuana.  Additionally, the physician must determine that the risks of treating the patient with these treatment options are reasonable in light of the potential benefit to the patient.  Specific informed consent requirements are also required to be obtained from the patients.  As of September 2016 low THC and medical marijuana are available in Florida for qualifying patients.

The newly passed Amendment 2 expands Floridians’ access to medical marijuana. Amendment 2 allows individuals with specific debilitating diseases or conditions to legally obtain medical marijuana.  The Florida Department of Health is tasked with registering and regulating marijuana production and distribution centers.  Patients, as well as caregivers, approved to receive medical marijuana will receive identification cards.

Amendment 2 defined “Debilitating Medical Condition” 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.”

Similar to current low THC cannabis and medical marijuana laws, a physician must perform a physical examination and full assessment of medical history of the patient in order to certify the patient as eligible for medical marijuana.

Now, the Florida Department of Health will create regulations within the language of Amendment 2 in order to implement the changes.  The Department has six (6) months after the effective date in order to create such regulations.

For more information on how to become qualified to order low TCH cannabis and medical marijuana in Florida, please contact a member of our health care group. To reach Ann Breitinger, Corporate and Healthcare attorney, email abreitinger@blalockwalters.com. *

*Federal law does not recognize or protect medicinal marijuana possession or use.  For more information regarding Federal law and policy regarding medical marijuana, please contact a member of our health care team. Additionally, at this time it is unclear whether the Trump administration will continue or abandon Obama’s policy of noninterference with state marijuana laws.

How will Amendment 2 effect employers?

The impact on Florida employers of the Amendment 2 is not entirely clear. While Amendment 2 does not provide much guidance concerning employer’s obligations related to employees’ medical marijuana use, it does make clear that on-site medical use of marijuana in the workplace is not required. Therefore, the new law does not impact smoke-free work place policies. For more information about addressing medical marijuana in the workplace, contact Labor and Employment attorney Anne Chapman.

What impact will Amendment 2 have on local ordinances?

Some local governments are considering implementing temporary moratoriums on dispensaries in their area. We will keep you updated as these moratoriums are developed and implemented.  For more  information, please contact  our Land Use attorneys, Scott Rudacille and Mark Barnebey, at 941.748.0100.