A misfire on draft of medical marijuana rules since they contravene Amendment 2
The Florida Department of Health appears to be inviting a lawsuit should the first batch of rules over implementation of the medical marijuana constitutional amendment eventually be adopted. They fail to follow the ballot language and restrict patient access, listing a limited number of ailments that cut out some the amendment enumerates. This first draft of regulations, released last week, also maintains the status quo — by bolstering the current regulatory system that restricts the number of dispensaries.
Amendment 2 directs the agency to “issue reasonable regulations necessary for the implementation and enforcement” ... “to ensure the availability and safe use of medical marijuana by qualifying patients.” The agency’s initial attempt at that is not reasonable.
The draft adopts the business model set up for the Compassionate Medical Cannabis Act of 2014, which decriminalized low-THC pot and limits marijuana sales to patients with cancer, epilepsy and conditions that cause “seizures or severe and persistent muscle spasms.” Terminally ill patients are allowed full-strength cannabis.
The law only permits seven tightly regulated medical cannabis dispensaries to control all aspects of the business — growing, processing and selling the marijuana. This “vertically integrated” structure with its limited number of dispensary licenses promises to be swamped in the new marketplace when the number of patients skyrockets, as it surely will.
The Florida Office of Economic and Demographic Research estimates medical marijuana patients will number about 450,000 annually, but the figure could rise should the number of qualifying conditions increase.
The state selected the winners in the license contest, basically building a powerful state-sanctioned cartel that blocks competition — as stated by Sen. Jeff Brandes, R-St. Petersburg: “What we are creating is the definition of a cartel.”
He favors a free marketplace with no cap on the number of growers, and vertical integration would be dismantled as companies could obtain separate licenses for growing, processing, selling and delivering cannabis, a sensible proposal that follows Colorado’s experience. That state found the vertical model problematic and abandoned it.
The worst aspect of DOH’s draft rules, though, discards Amendment 2’s list of ailments and gives the state control. The amendment’s language unequivocally lists full-strength marijuana as a treatment for cancer, HIV/AIDS, multiple sclerosis, epilepsy and post-traumatic stress disorder as well as similar “debilitating conditions” as determined by a physician licensed to recommend cannabis to patients.
Instead, DOH usurps the amendment by limiting and listing specific conditions for cannabis use and gives the state Board of Medicine the power to add ailments. Chronic pain is not on the proposed qualifying medical conditions. The draft rules also eliminate doctor discretion, which also violates the amendment.
Proposed legislation, though, specifically states “chronic non-malignant pain” as one qualifying condition.
The DOH has a checkered history on writing marijuana regulations after bungling the roll out of the 2014 Charlotte’s Web law, which legalized a form of low THC marijuana to help control the symptoms of seizures. The agency’s initial attempt was met by legal challenges. Bureaucratic missteps also delayed implementation.
The department should discard this draft of Amendment 2 regulations. And be admonished for brazenly disregarding their duty to follow the state Constitution.
We expect the Legislature will have the final word on this. And we expect the eventual regulations will follow the amendment’s stipulations and the will of the people. Florida needs a reasonable and accountable medical marijuana policy. DOH does not appear to be up to the task.
This story was originally published January 31, 2017 at 3:07 PM with the headline "A misfire on draft of medical marijuana rules since they contravene Amendment 2."