Florida Cannabis: Amendment 2, The Good, The Bad, and The Indifferent

directions to vote american flag signAs we Floridians (I grew up in Florida and received both my undergraduate and law degrees there) get closer to voting on whether to adopt Amendment 2, both the yes and no camps are interpreting the Amendment in an effort to illuminate for the public what will happen if the Amendment passes. In this post, we try to figure out what this Amendment will likely mean for Florida based on our work in multiple other medical marijuana states.  Amendment 2 itself is short, but relatively broad in scope; here are the highlights of which voters should be aware (in our opinion):

1.   “A physician licensed in Florida shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section.” Contrary to what some in the “Say No On 2” campaign believe, this provision does not license doctors to prescribe cannabis. Doctors cannot “prescribe” cannabis because it is still a Schedule I illegal substance under Federal law. Moreover, doctors can lose their medical licenses (which are overseen by the DEA) for even recommending that their patients use cannabis. Most importantly, the Amendment mandates that only licensed physicians can make a cannabis recommendation after fully documenting why their patient needs the marijuana and that marijuana is a good alternative to other drugs. This is different from California or Washington, where a “licensed health care provider” can recommend cannabis. Though Florida once had a “pill mill” epidemic, it is very unlikely that it will experience the same fate with marijuana where marijuana is still a Federally illegal substance. In addition, Floridians should trust in their own law enforcement to bust unscrupulous physicians.

2. “Debilitating Medical Condition” means cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” If Floridians care about the recreational use of marijuana and/or its “abuse,” this is probably the most problematic provision in the Amendment. Why? Because it includes “other conditions.” Medical marijuana statutes that allow for using marijuana for chronic or intractable pain do have a tendency to lead to loopholes that allow for recreational use and to gray market tactics like phony recommendations or a medical marijuana card that never expires. Washington, California, and Oregon all allow medical cannabis for chronic pain and we cannot deny that all three states have had issues with perfectly health “patients” getting legal medical cannabis.

3. “Personal caregiver” means a person who is at least twenty-one (21) years old who has agreed to assist with qualifying patient’s medical use of marijuana and has a caregiver identification card issued by the Department. A personal caregiver may assist no more than five (5) qualifying patients at one time.” Designated care providers have been used to circumvent medical marijuana laws in multiple states that have failed to create a designated care provider registry and where the relevant statutory language allows “caregivers” to serve an infinite number of patients with no regulation or oversight by the state. But Florida is not likely going to be susceptible to that because its Amendment 2 mandates that caregivers register with the state, that the Department of Health oversee caregiver participation, and that caregivers be limited in the number of patients they can serve.

4. “Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any place of education or employment, or of smoking medical marijuana in any public place.” Just like all other states that have legalized cannabis, Florida employers can still maintain zero tolerance drug policies and smoking marijuana in public places will be forbidden.

5. “Duties of the Department [of Health].” The “No on 2” campaigners are stirring up hysteria by claiming that Florida will become like California if it implements a full medical marijuana program. California has become the wild west for marijuana because it continues to have no real state oversight of its marijuana program, but Florida cannabis will be regulated by Florida’s Department of Health. Lest anyone believe the Department of Health is not up to the task of strictly regulating medical cannabis, please check out the onerous regulations under Florida’s recently passed Charlotte’s Web law.

Though Amendment 2 is not without its flaws, it is worth passing and we urge you to vote yes on November 4th. For the reasoning behind our position on this vote, please check out Vote Yes On Florida’s Medical Marijuana Amendment 2, No Matter What.