By Hannah Becker and Jason Cetel
On November 8, 2016, Florida voters approved the Florida Medical Marijuana Legalization Initiative, known as Amendment 2. Amendment 2 amends the Florida Constitution allowing those with a “debilitating medical condition,” which includes, among other diseases, cancer, epilepsy, glaucoma, HIV/AIDS, multiple sclerosis, and “other debilitating medical conditions of the same kind or class as or comparable to those enumerated” to use medical marijuana (cannabis) for medical purposes if recommended by their physician.
While cannabis now has an accepted and expanded medical use in Florida, physicians should keep in mind that marijuana remains listed as a Schedule I drug and has no accepted medical use under federal law.
Despite the efforts of a majority of states to legalize medical marijuana, the federal Drug Enforcement Administration recently reaffirmed its position by refusing to reclassify marijuana as a Schedule I substance under the Controlled Substances Act (“CSA”). Nevertheless, the current Administration’s enforcement policy limits the prosecution of CSA violations, provided an individual has complied with state law and the state has implemented a strong and effective regulatory system to address threats that would undermine federal enforcement priorities. Although Amendment 2 does not shield physicians from any federal violations for prescribing a controlled substance, careful compliance with the requirements for recommending medical cannabis will provide immunity under Florida law. While compliance with the law will not trigger civil or criminal sanctions, the laws relating to professional negligence and malpractice still apply.
With the approval of Amendment 2, Florida continues to expand the lawful use of medical cannabis. Amendment 2 authorizes the legislature and Department of Health’s Office of Compassionate Use (“OCU”) to create a system for manufacturing, dispensing, and possessing medical cannabis. The OCU will have six months after the effective date of January 3, 2017 to pass certain regulations governing medical cannabis, and within nine months must begin issuing identification cards to qualifying patients and caregivers and registering “Medical Marijuana Treatment Centers.” In preparation for the implementation of Amendment 2 and the expansion of Florida’s medical marijuana industry, Florida physicians should begin preparing for the upcoming changes that will undoubtedly affect their practice. As a basis, physicians should read the OCU’s bi-weekly updates on implementations and independently educate themselves on the therapeutic benefits and health risks associated with the medical use of cannabis.
In 2014, the legislature enacted the Compassionate Medical Cannabis Act, which authorizes approved dispensing organizations to manufacture and sell “low-THC cannabis” for medical use by qualifying patients. The legislature expanded this law earlier this year to allow terminally ill patients to access medical cannabis without limitations on THC concentration. Under the current law, qualifying physicians recommending low-THC cannabis or medical cannabis must, among other requirements, (i) complete an eight-hour CME course and pass an examination (ii) add his or her qualifying patient to the state’s compassionate use registry, (iii) order the specified amount of low-THC cannabis or medical cannabis from an authorized dispensing organization, and (iv) maintain and submit a treatment plan for each patient to the University of Florida College of Pharmacy. Since the Florida legislature and OCU spent over one year developing this regulatory scheme, it is expected that the physician certification procedures under Amendment 2 will be relatively consistent with the current model, although they are subject to alterations.
Physicians who chose to participate in Florida’s expanding medical marijuana industry by incorporating cannabis into their patients’ treatment regimens must navigate through an emerging area of medicine and law that requires careful attention to how cannabis impacts the standard of care. Recommending medical marijuana to patients will open up compliance and liability considerations, so it is beneficial to consult with competent regulatory compliance counsel to advise on the laws and regulatory requirements, so that you, as Florida physicians, can fulfill your Hippocratic Oath by focusing your attention on how to best treat and care for your patients.