• Update on Medical Marijuana Regulation in Florida
  • December 19, 2016 | Authors: Peter E. Reinert; Steven Strickland
  • Law Firm: Lowndes, Drosdick, Doster, Kantor & Reed Professional Association - Orlando Office
  • Although there is little clarity regarding medical marijuana regulation in Florida, Amendment 2’s approval and corresponding upcoming legislation suggest that more companies will likely be permitted to grow, process, and sell medical marijuana in Florida in the near future.

    Amendment 2

    On November 8, 2016, Florida approved Amendment 2, expanding the use of medical marijuana and requiring the Florida Department of Health to regulate centers that produce and distribute marijuana for medical purposes. Amendment 2 becomes effective on January 3, 2017. Amendment 2 requires the Florida Department of Health to enact the following regulations by July 2017:

    (a) Procedures for the issuance and annual renewal of qualifying patient identification cards to people with physician certifications and standards for renewal of such identification cards. Before issuing an identification card to a minor, the Department must receive written consent from the minor’s parent or legal guardian, in addition to the physician certification.

    (b) Procedures establishing qualifications and standards for caregivers, including conducting appropriate background checks, and procedures for the issuance and annual renewal of caregiver identification cards.

    (c) Procedures for the registration of medical marijuana treatment centers (MMTCs) that include procedures for the issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection, and safety.

    (d) A regulation that defines the amount of marijuana that could reasonably be presumed to be an adequate supply for qualifying patients’ medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient’s appropriate medical use.

    (2) The Department shall begin issuing qualifying patient and caregiver identification cards, and registering MMTCs no later than nine (9) months after the effective date of this section.

    In addition, Amendment 2 includes the following “Public Policy” provisions:

    (1) The medical use of marijuana by a qualifying patient or caregiver in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law.

    (2) A physician shall not be subject to criminal or civil liability or sanctions under Florida law solely for issuing a physician certification with reasonable care to a person diagnosed with a debilitating medical condition in compliance with this section.

    (3) Actions and conduct by a Medical Marijuana Treatment Center registered with the Department, or its agents or employees, and in compliance with this section and Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law.

    The full text of Amendment 2 can be read here: http://dos.elections.myflorida.com/initiatives/fulltext/pdf/50438-3.pdf.

    Response to Amendment 2

    Since the passage of Amendment 2, many Florida cities (such as Orlando, Miami Beach, Boca Raton, and Deerfield Beach) and counties (such as Orange County and Hillsborough County) have placed temporary moratoriums on medical marijuana dispensaries. City of Orlando commissioners extended a moratorium on medical marijuana dispensaries until July 2017, and Orange County commissioners voted for a similar moratorium until either May 23, 2017 or whenever the commission adopts new rules.

    Future Regulation and Business Opportunities

    In response to Amendment 2, the Florida Legislature is already working on a new bill to regulate medical marijuana in Florida, but the specifics of such legislation are not yet known. Although Florida State Senator Jeff Brandes (R-St. Petersburg) has said that the new bill will end the existing medical marijuana program in favor of a new program that will allow more companies to grow, process, and sell medical marijuana. In the Miami Herald, Brandes stated that, “I am not willing to compromise about opening up the market, period, full stop... We are going to have a free market system here in Florida.” By contrast, many members of the Florida Legislature who previously opposed Amendment 2 have already spoken in support of more onerous regulation. Brandes has also stated that under his bill, local governments would be able to decide whether or not to limit the location and number of medical marijuana dispensaries.

    Despite the lack of regulatory clarity, a number of entrepreneurs and businesses are seeking to break in to the Florida medical marijuana market due to the size of the potential market and the lack of established companies. A recent study by New Frontier Data and Arcview Market Research, for example, projected that the size of the Florida medical marijuana market will surpass $1 billion by 2020 and that Florida will command as much as 7.9% of the total U.S. legal marijuana market and 16% of the U.S. medical marijuana market. Currently, only six organizations have licenses to grow, process, and distribute medical marijuana-related products in Florida, and less than 700 patients were registered to receive medical marijuana products in Florida as of November 9, 2016.