The social and political efforts in California, Colorado and other states to legalize the production, distribution, sale and use of marijuana (for medical purposes or otherwise) is also present in Florida. This year, 2014, is particularly active for those who want to see Florida permit the use of medical marijuana. Partially in response to the proposed constitutional amendment, “Use of Marijuana for Certain Medical Conditions” (the “Amendment”), which will appear on the November 4 ballot, the Florida Legislature began addressing the issue of legalizing marijuana for medicinal purposes. As a result, the Compassionate Medical Cannabis Act of 2014 (the so-called “Charlotte’s Web Statute”), was passed by the Legislature and signed by Governor Scott.

Starting January 1, 2015, the Charlotte’s Web Statute allows a certified physician to register a “Qualified Patient” on a “compassionate registry” in order to receive a low THC form of cannabis. Patients who qualify for the compassionate registry must need it for the treatment of condition, such as cancer or other disorders, which result in the patient experiencing seizures and uncontrollable muscle contractions. Certifying physicians authorized to prescribe and establishing the criteria for who is a “Qualified Patient” will be established and administered by the Florida Department of Health (“DOH”). The Charlotte’s Web bill puts the regulation of the production, distribution and licensure of the low THC cannabis in the hands of the DOH, and permits only five production and distribution operations throughout the state. Curiously, each of these production and distribution operations must be an approved nursery that has been in existence at least 30 years.

In contrast to the Charlotte’s Web Statute, the wording of the Amendment does not appear to limit the use of medical marijuana to conditions involving seizures and uncontrollable muscle contractions, restrict the ability of a licensed allopathic or osteopathic physician to prescribe marijuana for “debilitating diseases”, nor does the Amendment restrict medical marijuana to low THC cannabis. The Amendment states:

Use of Marijuana for Certain Medical Conditions – Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.

The most recent polling indicates that the Amendment will pass. Consequently, we already are seeing an influx of entrepreneurs seeking to take advantage of this business opportunity. Many of these entrepreneurs, particularly those who are not already involved in Florida’s healthcare industry, will not be familiar with this state’s unique healthcare regulatory environment, which may result in many of them facing hurdles and assuming legal risks they had not anticipated.

The Amendment calls for a licensed physician to determine whether a patient should receive medical marijuana and the DOH to regulate its production and distribution “for medical purposes”, which makes it likely that this will be viewed as a healthcare item or service, similar to home medical equipment or prescription drugs. Whether dispensing medical marijuana will be limited to five distribution centers, as in the Charlotte’s Web Statute, or whether there will be additional distribution facilities (ex., pharmacies and physicians’ offices) remains to be seen. However, it is hard to imagine that the very restricted production and distribution authorized in current law will be able to accommodate the influx of patients expected to seek medical marijuana treatment, if the Amendment is adopted.

Entrepreneurs who are interested in developing Florida’s medical marijuana market need to recognize and build their businesses in light of the legal considerations that are unique to this state’s healthcare industry. These include the Florida Physician Self-Referral Act, Florida Patient Brokering Act and the Florida Health Care Clinic Act. These statutes have significant impact on the manner in which a Florida healthcare business may be owned, operated and licensed. Violating any of these statutes may result in substantial administrative, civil, or criminal penalties.

The federal government is unlikely to alter its prohibition against growing, possessing or distributing marijuana in the near future. Whether the federal government will interfere with the Amendment, if it is adopted, is another question. Recently, Congress considered legislation prohibiting the Drug Enforcement Agency from spending funds to crack down on states that have legalized marijuana. However, this legislation has not passed and its future will depend on the outcome of the upcoming election.

The use of medical marijuana in Florida remains unclear. Passage of the Charlotte’s Web Statute came at the last minute and was a surprise to many observers. If the Amendment is adopted, that will not be a surprise and we expect extensive lobbying from the many different interest groups. Parties interested in the way enabling legislation and regulations are shaped should become actively involved in this effort as soon as possible.