Briefing : Amendment 2, Medical Marijuana Legalization

The Florida Right to Medical Marijuana Initiative, known as Amendment 2, is on the November 4, 2014 ballot in Florida. The measure would legalize medical marijuana through an amendment to the state Constitution. The proposal would not legalize recreational marijuana, which has been legalized for sale in only two states: Colorado and Washington.

Medical marijuana has been legalized in 23 states and the District of Columbia.

The official ballot summary reads as follows:

Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.

See the full text of the amendment below.

The proposal was initiated by People United for Medical Marijuana, also known as United For Care, and chiefly financed by John Morgan, the Orlando attorney, who pledged $6 million to the effort.  The proposal has the support of Charlie Crist, the Democratic candidate for governor and Sen. Jeff Clemens, the Lake Worth Democrat, and Flagler County Sheriff Jim Manfre, among others. The legalization of medical marijuana, according to a July Quinnipiac poll, is supported by 88 percent of Floridians.

The proposal is opposed by Florida Gov. Rick Scott, Attorney General Pam Bondi, the Florida Medical Association and the Drug Policy Institute. 

The proposed constitutional amendment has often been mis-characterized as legalizing recreational marijuana, or making medical marijuana easily accessible. Neither is accurate.

From Ballotpedia:

The measure defines a “debilitating medical condition” as cancer, multiple sclerosis, glaucoma, hepatitis C, HIV, AIDS, ALS, Crohn’s disease, Parkinson’s disease “or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”^[1]

The Florida Department of Health would be responsible for regulating medical marijuana. The department would issue and regulate patient identification cards, personal caregiver identification cards, develop procedures related to medical marijuana treatment centers and institute regulations defining reasonable amounts of marijuana for medical use. The department would be required to protect the confidentiality of all patients.^[1]

The constitutional amendment contains six limitations on how the amendment’s language can be construed:^[1]

• The amendment does not “affect laws relating to non-medical use, possession, production or sale of marijuana.”
• The amendment does not authorize “the use of medical marijuana by anyone other than a qualifying patient.”
• The amendment does not allow for the “operation of a motor vehicle, boat, or aircraft while under the influence of marijuana.”
• The amendment does not require accommodations for medical marijuana use “in any place of education or employment, or of smoking medical marijuana in any public place.”
• The amendment does not require “any health insurance provider or any government agency or authority to reimburse any person for expenses related to the medical use of marijuana.”
• The amendment does not require “the violation of federal law or purports to give immunity under federal law.”

Ben Pollara, campaign manager of United for Care, offered counter arguments to what he considered the opposition’s four main arguments:

• Claim #1: “Medical marijuana will destroy families like alcohol and other drugs have.” Pollara replied, “Florida voters understand that passing Amendment 2 will grant medical marijuana access to really sick people. Conversations of addiction are not really germane. And to the effect that it is, common substitutes prescribed to use instead of medical marijuana are opiates, which are highly addictive. Using medical marijuana legally should decrease addictions in Florida to Oxycodone and Percocet.”
• Claim #2: “The medical marijuana issue is a Republican versus Democrat issue.” Pollara replied, “Medical marijuana is a nonpartisan issue. In a poll conducted by Republicans in Republican-held state senate districts, 78 percent supported medical marijuana. And in the polls we conducted, that number has always been well above 50 percent.”
• Claim #3: “Children do not need medical marijuana to treat epilepsy since there are clinical trials they can participate in.” Pollara replied, “Kevin [Sabet] is talking about clinical trials on CBD-based pharmaceuticals. It doesn’t take into account kids suffering from seizures because they can’t apply to be in study since it doesn’t exist in Florida. It’s like applying to Harvard. Parents are desperate. I’m not a parent, but I would want treatment for my child immediately and not wait. Medical marijuana is not particularly dangerous, and suffering children shouldn’t have to wait for any real pharmaceutical research.”
• Claim #4: “The wording in the amendment is too lenient and will make medical marijuana available to anyone.” Pollara replied, “If there was any doubt, the Florida Supreme Court has already ruled that the amendment will only be used in cases of debilitating illness. The purpose of the amendment is to allow the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. In its wording, the amendment specifically says ‘Nothing in this section authorizes the use of medical marijuana by anyone other than a qualifying patient.”

The full text of the proposed Amendment is below.

ARTICLE X, SECTION 29. Medical marijuana production, possession and use.

(a) PUBLIC POLICY.

(1) The medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability or sanctions under Florida law except as provided in this section.

(2) A physician licensed in Florida shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section.

(3) Actions and conduct by a medical marijuana treatment center registered with the Department, or its employees, as permitted by this section and in compliance with Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law except as provided in this section.

(b) DEFINITIONS.

For purposes of this section, the following words and terms shall have the following meanings:

(1) “Debilitating Medical Condition” means 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, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

(2) “Department” means the Department of Health or its successor agency.

(3) “Identification card” means a document issued by the Department that identifies a person who has a physician certification or a personal caregiver who is at least twenty-one (21) years old and has agreed to assist with a qualifying patient’s medical use of marijuana.

(4) “Marijuana” has the meaning given cannabis in Section 893.02(3), Florida Statutes (2013).

(5) “Medical Marijuana Treatment Center” means 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 materials to qualifying patients or their personal caregivers and is registered by the Department.

(6) “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.

(7) “Personal caregiver” means a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient’s medical use of marijuana and has a caregiver identification card issued by the Department. A personal caregiver may assist no more than five (5) qualifying patients at one time. An employee of a hospice provider, nursing, or medical facility may serve as a personal caregiver to more than five (5) qualifying patients as permitted by the Department. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use by the qualifying patient.

(8) “Physician” means a physician who is licensed in Florida.

(9) “Physician certification” means a written document signed by a physician, stating that in the physician’s professional opinion, the patient suffers from a debilitating medical condition, that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient, and for how long the physician recommends the medical use of marijuana for the patient. A physician 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.

(10) “Qualifying patient” means a person who has been diagnosed to have a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card. If the Department does not begin issuing identification cards within nine (9) months after the effective date of this section, then a valid physician certification will serve as a patient identification card in order to allow a person to become a “qualifying patient” until the Department begins issuing identification cards.

(c) LIMITATIONS.

(1) Nothing in this section shall affect laws relating to non-medical use, possession, production or sale of marijuana.

(2) Nothing in this section authorizes the use of medical marijuana by anyone other than a qualifying patient.

(3) Nothing in this section allows the operation of a motor vehicle, boat, or aircraft while under the influence of marijuana.

(4) Nothing in this law section requires the violation of federal law or purports to give immunity under federal law.

(5) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any place of education or employment, or of smoking medical marijuana in any public place.

(6) Nothing in this section shall require any health insurance provider or any government agency or authority to reimburse any

person for expenses related to the medical use of marijuana.

(d) DUTIES OF THE DEPARTMENT.

The Department shall issue reasonable regulations necessary for the implementation and enforcement of this section. The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients. It is the duty of the Department to promulgate regulations in a timely fashion.

(1) Implementing Regulations. In order to allow the Department sufficient time after passage of this section, the following regulations shall be promulgated no later than six (6) months after the effective date of this section:

a. Procedures for the issuance of qualifying patient identification cards to people with physician certifications, and standards for the renewal of such identification cards.

b. Procedures for the issuance of personal caregiver identification cards to persons qualified to assist with a qualifying patient’s medical use of marijuana, and standards for the renewal of such identification cards.

c. Procedures for the registration of Medical Marijuana Treatment Centers that include procedures for the issuance, renewal, suspension, and revocation of registration, and standards to ensure security, record keeping, testing, labeling, inspection, and safety.

d. A regulation that defines the amount of marijuana that could reasonably be presumed to be an adequate supply for qualifying patients’ medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient’s appropriate medical use.

(2) Issuance of identification cards and registrations. The Department shall begin issuing qualifying patient and personal caregiver

identification cards, as well as begin registering Medical Marijuana Treatment Centers no later than nine months (9) after the effective date of this section.

(3) If the Department does not issue regulations, or if the Department does not begin issuing identification cards and registering Medical Marijuana Treatment Centers within the time limits set in this section, any Florida citizen shall have standing to seek judicial relief to compel compliance with the Department’s constitutional duties.

(4) The Department shall protect the confidentiality of all qualifying patients. All records containing the identity of qualifying patients shall be confidential and kept from public disclosure other than for valid medical or law enforcement purposes.

(e) LEGISLATION.

Nothing in this section shall limit the legislature from enacting laws consistent with this provision.

(f) SEVERABILITY.

The provisions of this section are severable and if any clause, sentence, paragraph or section of this measure, or an application thereof, is adjudged invalid by any court of competent jurisdiction other provisions shall continue to be in effect to the fullest extent possible.