By all accounts, it appears that change is coming to the cannabis laws in Florida. With Florida predicted to be the second-largest medical marijuana market in the nation behind California, the stakes are incredibly high. By the time the next president takes office, it is likely that Florida will be among the states that allow full-scale medical marijuana.
However, Florida’s progress on legalization has been very slow. Although the Legislature enacted a limited low-THC/high-CBD cannabis legalization scheme during its 2014 session, there have been lengthy delays in rolling out the program. As of this writing, access for patients is not expected until 2016 at the earliest, approximately a year later than initially hoped. Independent of this limited program, it is widely expected that there will be significant changes to Florida’s cannabis laws before the close of 2016. But, when it comes to politics and elections, Florida is anything but predictable.
Compassionate Care Act
The failure of Amendment 2 during the 2014 election took the wind from the sails of many who had invested significant effort into bringing medical marijuana to Florida. On the flip side, it spawned greater interest in Florida’s legislatively-enacted, low-THC/high-CBD cannabis program. This program, which was quietly signed into law by the governor during the summer of 2014, was principally intended to benefit those stricken with epilepsy and other chronic conditions that produce severe seizures or muscle spasms.
The cannabis authorized under the program is required to contain 0.8% or less THC and more than 10% CBD, ratios that can only be achieved by certain varieties of the cannabis plant. The act specifically excludes smoking as an authorized “medical use.”
Under the act, the Department of Health is responsible for awarding licenses to five “dispensing organizations,” each of which will receive the exclusive right to operate in a particular region of the state. Complete vertical integration is required under the law and these five licensees will be the only entities in the state authorized to cultivate and dispense cannabis.
One of the most controversial aspects of the act is the extreme limitation of qualified applicants for business licenses. The law narrows the pool of eligible applicants to registered nurseries that have been operating in the state for at least the last 30 continuous years, and possess a valid certificate of registration issued for the cultivation of more than 400,000 plants.
There were 28 applications filed for the five dispensing organization licenses. Successful applicants were expected to be announced by the time this issue is printed.
Other Legalization Initiatives
As the Florida Department of Health reviews the lengthy applications for dispensary licenses, cannabis advocates are doubling down for the 2016 election. The group behind Amendment 2 made some adjustments to the language of the proposed amendment in order to address concerns raised by critics. As of this writing, about 25% of the required signatures had been collected to put the measure on the 2016 ballot.
There are also four other groups collecting signatures to put their own legalization measures before voters in 2016.
2014 Constitutional Amendment
Full-scale medical marijuana nearly became a reality when the Florida Right to Medical Marijuana Initiative (Amendment 2) appeared on the state’s November 2014 ballot as a voter-initiated constitutional amendment.
Under the proposed amendment, patients with a “debilitating medical condition” would have been able to obtain marijuana from treatment centers licensed by the Department of Health. The Department of Health would have also overseen the issuance of patient and caregiver identification cards, and the development of regulations necessary to implement the program.
In early 2014, it appeared there was little chance the amendment could fail. Although Florida law requires a supermajority vote of 60% for citizen-initiated constitutional amendments to pass, numerous public opinion polls showed strong support for the measure and for relaxation of the state’s tough cannabis laws.
In anticipation of legalization, growers, consultants and marketers of all types descended on the Sunshine State, offering to teach Floridians everything about cannabis.
However, opponents seized Amendment 2’s definition of “debilitating medical condition,” which listed “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, (and) multiple sclerosis,” but also included the language: “other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” This, the opposition argued, made the amendment overly vague and would open the door to nearly anyone being able to obtain legal cannabis.
Opponents argued that the amendment’s definition of “caregiver” would “protect drug dealers from prosecution.” The opposition also claimed lawmakers would be powerless to correct these issues later because the amendment would be forever enshrined in the state’s constitution. All told, Amendment 2’s supporters and opponents each spent more than $5 million advocating their positions.
On Election Day, Amendment 2 garnered 57.6% of the votes, just shy of the 60% necessary to pass. By comparison, the state’s governor was reelected during the same election with only 48.2% of the votes cast. In fact, Amendment 2 received a higher percentage of votes than the winners of the last eight elections for the governor’s seat in Florida.
Ari H. Gerstin is a lawyer at the national law firm Akerman LLP and a member of the Regulated Substances Task Force. He can be reached at ari.gerstin@akerman.com.