Thoughts on the Proposed "Medical" Marijuana Amendment in Florida.
I. Summary of Constitutional Amendment for Use of Marijuana for Certain Medical Conditions
Florida is considering a constitutional amendment which will be on the ballot November 4, 2014, relating to the issue of “use of marijuana for certain medical conditions.” According to the ballot summary the amendment to the Florida Constitution would allow “the medical use of marijuana for individuals with debilitating diseases as determined by a licenses Florida physician.” The amendment according to its language would allow caregivers to assist patients in the medical use of marijuana. Further, the amendment designates the Department of Health (DOH) the responsibility of registering and regulating centers that produce and distribute marijuana for medical purposes, issue identification cards to patients and caregivers and write administrative rules to govern this industry.
II. Summary of the Amendment
The drafters of the amendment have covered many of their bases in putting forth a proposed amendment that would draw the least amount of opponents. In the public policy section of the amendment it indicates that the “medical use of marijuana by qualifying patients or personal caregivers is not subject to criminal or civil liability sanctions under Florida law “except as provided in the amendment.” Essentially, as long as patients and their caregivers are following the medical marijuana law, there is no criminal or civil liability. Furthermore, Florida physicians are not subject to criminal or civil liability so long as they are following the proposed law and only issuing physician certification to “a person diagnosed with debilitating medical condition.”
The term “debilitating medical condition” is defined in the amendment to mean “cancer, glycoma, positive status for Human Immunodeficiency virus (HIV), Acquired Immune Deficiency Syndrome (AIDS), Hepititis C, Amyotrophic Lateral Sclerosis (ALS), Crohn’s Disease, Parkinson’s Disease, Multiple Sclerosis, or other condition for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” The last clause of this definition which reads “or other conditions for which a physician believes that the medical use of marijuana will likely outweigh the potential health risk for a patient,” is essentially an open door to allowing the physician to prescribe marijuana for any other conditions other than those listed. Interestingly, the amendment defines “marijuana” as meaning cannabis as defined in Section 893.02(3), Florida Statutes (2013).” The definition contained in that law is:
(3) “Cannabis” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include “low-THC cannabis,” as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with s. 381.986.
Another important definition is "Medical Marijuana Treatment Center" or "MMTC", which is defined as “an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments) transfers, transports, sells, distributes, dispenses or administers marijuana products containing marijuana, related supplies or educational material to qualifying patients or their personal caregivers and is registered by the Department of Health.” In essence, MMTC’s will be the suppliers of medical marijuana in Florida if the amendment passes. This definition appears to cover all of the bases and allow MMTC’s to not only sell marijuana and its products containing marijuana, but grow and acquire it.
“Medical use” means the acquisition, possession, use, delivery, transfer, or administration of marijuana or related supplies by a qualifying patient or personal caregiver for use by a qualifying patient for the treatment of a debilitating medical condition.”
“Physician” means a physician who is licensed in Florida.
The act also includes other definitions of “physician certification” and who a “qualifying patient” is. The bottom line here is that a physician must provide in his “professional opinion’ a statement or certification that “the patient suffers from a debilitating medical condition” that the potential benefits of the medical use of marijuana would likely outweigh the risks. It should be pointed out that the amendment states that a physician’s certification “may only be provided after the physician has conducted a physical examination of the patient and a full assessment of the patient’s medical history. Perhaps, the drafters of this amendment learned from the “pill mill” fiasco the importance of patients undergoing a physical examination and assessment prior to prescribing serious medications.
It is important to note that there are limitations set forth in the language of this amendment. Those limitations can best be summarized as follows:
- The amendment does not affect the ‘non-medical use” of medical marijuana, so therefore non-medical use is illegal.
- The amendment does not authorize use of medical marijuana by anyone other than a “qualifying patient.”
- The amendment does not allow operation of a motor vehicle, boat or aircraft while under the influence of marijuana.
- The language of the proposed amendment states that nothing in its language requires violation of federal law or purports to give any immunity under federal law.
- Nothing in the amendment requires any “accommodation of any onsite medical use of marijuana in any place of education or employment, or smoking of medical marijuana in any public place.
- Nothing in the proposed amendment requires any health care provider or government agency or authority to reimburse the patient for marijuana.
It is interesting to point out that in these limitations it appears that they are specifically excluding scenarios where a person might claim a constitutional right to smoke marijuana at work, in an educational facility, or in “any public place.” I suspect that the term “public place” will be the subject of much litigation. When are you, in fact, “in public” as opposed to privately smoking marijuana?
Similarly, it is curious to note that the amendment does not create a constitutional right to have the government guarantee that a health insurance provider reimburse the marijuana smoker for expenses relating to the use of “medical marijuana.” Is this by implication and admission by the drafters that it's not really "medical" in nature? Or do the policymakers not want marijuana use to contribute to increases in the overall cost of health care.
IV. Duties of the Department of Health
The constitutional amendment designates the Department of Health as the regulator of this policy. Specifically, DOH is tasked with drafting “reasonable regulations” for the implementation and enforcement of the proposed law. According to the language itself in the proposed amendment:
The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifiying patients.
So, I guess from the policy statement in the proposed constitutional amendment the main thrust will be to ensure: (1) the availability; and (2) safe use of this substance by “qualifying patients.” This sets up a scenario where DOH will be in charge of availability of marijuana, the safety of the product or products produced from this new industry, as well as policing whether or not “qualifying patients” are the only ones consuming marijuana. This is a large responsibility and no doubt law enforcement will still have a role if called upon to determine who is a “qualifying patient” and who is not. One wonders if any single government agency will have the personnel and manpower to administer such a regulatory scheme.
I wrote this blog not to take a position on the issue but rather to cover a few features of the proposed amendment and raise important questions that need to be addressed. Passage of the proposed amendment at this time is not a sure thing and its effect on actual health care is debateable, nothwithstanding the appeals to emotion that have been lately heard in the media. Health care professionals and facilities that are considering this as an avenue of income should tread lightly. Many questions remain and even if Amendment 2 were to pass I expect there to be much litigation in the court system over who gets licenses/certifications, the extent to which DOH can regulate, and the power of the Florida Legislature to enact statutes governing the access and distribution. The language of the Amendment itself states that the Legislature may only pass laws that are not in conflict with the Amendment. Stay tuned!