Florida Seeks to End Ban on Smoking Medical Marijuana

On Tuesday, February 12, 2019, the Florida House’s Health and Human Services Committee considered a new bill that would allow medical marijuana patients to receive their prescription in smokable form.  The Committee voted in favor of the bill, with only two votes in opposition, and it will now head to the appropriations committee as it moves closer to a vote.

After Florida voted to legalize medical marijuana in 2016, then Governor Rick Scott signed the bill into law while putting into place a ban on certain forms of the drug.  Patients have been unable to smoke or consume in edible form their prescription since 2017.  The current law prohibits possession or use of medical marijuana in a form for smoking except for flower in a sealed, tamper-proof receptacle for vaping.

The movement towards ending the ban on smoking began with a lawsuit in 2017 by Florida People United for Medical Marijuana and struck a major victory in 2018 when Circuit Court Judge Karen Gievers struck down the ban, a decision that is currently on appeal.  The movement has the support of Florida’s new governor, Ron DeSantis.  DeSantis declared that he would move forward with a repeal of the ban by March 15, 2019 if legislation is not in place by that time. He also tried promulgating the use of vapes, particularly herbal ones from places like 180 Smoke herb vaporizers as an alternative to the traditional cigarette, as the effects of vapes are far less adverse.

The proposed bill seeks to upend the ban while providing a list of conditions and restrictions for physicians and dispensaries alike.  Qualified physicians are keen to take note of the requirements for writing smoking prescriptions. Under the proposed legislation, a qualified physician[1] must submit documentation to a review panel to receive authorization to issue a certification that a qualified patient[2] may receive a smoking prescription.  The documentation must include: (1) a list of other routes of administration of the substance that the patient has tried, the length of time the other methods were tried, and an assessment of the effectiveness of same; (2) research documenting that smoking is an effective route of administration to treat the patient’s condition and; (3) documentation supporting the physician’s opinion that the benefits of smoking the substance outweigh the potential health risks.  Once the issuance of the smokable product is approved, the physician is still subject to the limitations on dosage and may not issue a certification for more than three 70-day supply limits of the product.  The bill also implements an ongoing obligation to evaluate the patient and determine whether the patient still meets the requirements to be issued a certification.

The bill also seeks to establish an appellate style process in which physicians can appeal the denial of a certification to a review panel.

Additionally, under the bill, treatment centers will face restrictions on how smokable marijuana is prepared and sold to patients.  The bill seeks to limit dispensaries to producing only pre-rolled marijuana cigarettes with filtered papers that cannot be made of hemp or tobacco.  The bill further carries labeling and packaging restrictions in that it requires smokable marijuana labels be sealed with a legible and prominent warning to keep away children and a warning that states marijuana smoke contains carcinogens and may negatively affect health.  Receptacles for marijuana in a form for smoking must be plain, opaque, and white without depictions of the product or images other than the medical marijuana treatment center’s department-approved logo and the marijuana universal symbol.  Given the current restrictions and regulations on medical marijuana labeling, this portion of the bill may face additional scrutiny.

With no clear outcome set in stone, the new political landscape in Florida appears to be paving the way for a smokable form of medical marijuana.  Once the rules and regulations addressing how a smoking prescription must be written and filled, doctors and dispensaries set to test these waters should pay close attention to the requirements that will be enforced regulating the new prescription method.

[1] Under the legislation, a qualified physician is a person who holds an active, unrestricted license as an allopathic physician under chapter 458 or as an osteopathic physician under chapter 459 and is in compliance with the physician education requirements of subsection (3) of the bill.

[2] Under the legislation, a qualified patient is one who is a resident of Florida who has been added to the medical marijuana use registry by a qualified physician to receive marijuana or a marijuana delivery device for a medical use and who has a qualified patient identification card.

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