By: Richard M. Blau, Shareholder and Chair of GrayRobinson’s Food Law, Alcohol Law and Medical Marijuana practice groups
The first full work week of January suggests that 2017 will be a watershed year for the legalization of marijuana, both in Florida and throughout the United States. A number of significant events relating to the legalization of marijuana occurred at the state and federal levels.
1. IMPLEMENTATION OF AMENDMENT 2
Amendment 2, and the expanded scope of qualifying medical conditions eligible for treatment with medical marijuana became effective on January 3, 2017. Nevertheless, implementing statutes adopted by the Florida Legislature and signed into law by Florida Governor Rick Scott have yet to be issued. Likewise, the Florida Department of Health and its Office of Compassionate Use (OCU) have not yet promulgated regulations implementing the new laws associated with the expanded scope of medical marijuana under Amendment 2. However, during a hearing of the Florida House Health Quality Subcommittee convened on January 11, 2017, OCU Christian Bax told lawmakers Wednesday that the agency will convene rulemaking workshops "in the coming days," traveling to each of the five cultivation regions throughout the state.
These legislative and administrative processes will take time. The Florida Legislature’s 2017 session will not convene until March of this year. Moreover, under the express language of Amendment 2, the Department of Health has until July 3rd to promulgate regulations for qualifying physicians and patients eligible for the expanded uses of medical marijuana, and an additional three months (through October 3rd) to begin implementing those regulations.
Understandably, this timing may seem unbearable to those for whom legalized medical marijuana has been a long-time coming. However, the public should appreciate that the regulatory infrastructure for expanded medical marijuana, much like the industry itself, is in its infancy. Drafting forms, detailing reporting and record-keeping procedures, developing effective oversight requirements and enforcement procedures – these are all necessary for the development of an effective, safe and responsible medical marijuana industry. To do them right takes time.
Until then, the definitions, rules, requirements and restrictions contained in the Compassionate Medical Cannabis Act of 2014 or "Charlotte’s Web" law, codified as Section 381.986 of the Florida Statutes, and the Right to Try Act, codified as Section 499.0295 of the Florida Statutes, remain in effect. The Florida Department of Health, registered physicians, licensed dispensing organizations, and qualified patients remain bound by the existing laws and rules. As noted by the Florida Department of Health’s Website:
Florida law permits qualified physicians to order low-THC cannabis or medical cannabis for patients diagnosed with certain conditions. There are two types of cannabis products that may be ordered by qualified physicians:
1. Low-THC Cannabis: Patients with cancer or a condition that causes chronic seizures or muscle spasms may qualify to receive low-THC cannabis. Low-THC cannabis has very low amounts of the psychoactive ingredient THC and does not usually produce the "high" commonly associated with cannabis.
2. Medical Cannabis: If a patient is suffering from a condition determined to be terminal by two physicians, he or she may qualify for medical cannabis. This product can contain significant levels of the psychoactive ingredient THC and may produce the "high" commonly associated with cannabis.
2. DIRECTOR BAX’ VISION FOR INTERIM MEDICAL MARIJUANA ACCESS.
On July 11, 2017, Christian Bax, the director of the Florida Office of Compassionate Use, spoke at a hearing conducted by the Florida House Health Quality Subcommittee in Tallahassee. Following that hearing, during an interview with reporters, Director Bax was quoted as stating that physicians can decide if they want to order marijuana for patients with medical conditions eligible for treatment under Amendment 2, before his agency’s new rules are promulgated:
Should any patient establish a relationship with a physician for 90 days, the 90 days is a restriction on the timeline for which a physician can create an order. So a physician can create an order once that 90 days has happened. At that point, or anytime in the future, the physician can create an order for cannabis. . .
It's the Department's position that the registered, ordering physician is responsible for following the constitutional amendment (and) Florida statute for diagnosing patients and then for determining if that patient should receive medical cannabis . . .
And as far as enforcement for physicians, for patients, for businesses, any enforcement action initiated by the Department ...; is going to focus on those who are operating outside the regulatory framework and Florida law
When asked whether his guidance meant that a qualified patient with a physician’s certification could actually get that order filled by a licensed dispensary, Director Bax reportedly responded "Yes."
The OCU and its director are keenly aware that large numbers of Floridians favor the expansion of legalized medical marijuana. They also are sensitive to the desire of duly trained and registered physicians for a non-opiate option to provide palliative care for patients whose diseases entail significant suffering, such as military veterans suffering from severe post-traumatic stress syndrome (PTSD) or elderly patients enduring the anguish of Cancer, Parkinson’s Disease or Multiple Sclerosis. For this reason, it is understandable that Director Bax would want to adopt a policy that made the option for non-opiate pain relief available via medical marijuana.
However, that desire appears to have outpaced the law. Specifically, it is far from clear how a patient suffering from a debilitating condition as enumerated in Amendment 2 is authorized to receive medical cannabis from an existing "Dispensing Organization" under existing Florida regulations. Dispensing Organizations can provide medical cannabis or low-THC cannabis only to patients with statutorily-enumerated diseases who are listed on the Compassionate Use Registry. Similarly, Amendment 2 provides that only Medical Marijuana Treatment Centers (MMTCs) can provide marijuana for the constitutionally-enumerated debilitating conditions to patients with physician certifications/patient ID cards. But the Department of Health must promulgate rules for the issuance of those qualified patient identification cards within six months, and begin issuing the cards within nine months. It is only if the Department of Health fails to meet those timelines that Amendment 2 allows a qualified patient to use a registered physician’s written certification in lieu of a qualified patient identification card to obtain medical marijuana from a licensed dispensing organization. There is no legal authorization that merges the constitutional and statutory frameworks together to allow for immediate dispensing to the expanded population of qualifying patients created by Amendment 2. Absent rulemaking, the OCU’s position as recently articulated by Director Bax may be subject to challenge as being without a firm constitutional, statutory, or regulatory basis.
Granted, it is unlikely that anyone would want to prosecute a physician for offering a qualified patient a viable and safer alternative to opiates for the palliative treatment of extremely painful and debilitating diseases such as AIDS, Multiple Sclerosis and PTSD. Yet, looking beyond the Florida criminal justice system, the relationship with federal law also must be considered.
There is a risk that Director Bax’ vision, of combining administrative and prosecutorial discretion to allow for interim access to medical marijuana while awaiting legislative action and regulatory rulemaking, may create major problems for federal compliance with current Department of Justice (DOJ) enforcement policies. The DOJ’s policy statements under the Obama Administration make clear that marijuana remains an illegal drug under the Controlled Substances Act, but federal prosecutors will prioritize enforcement to conserve resources. Personal use of marijuana is outside the scope of those prioritized areas of enforcement, and the DOJ has repeatedly stated that it will continue to rely on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws.
In order to maintain this compromise, however, the DOJ also insists that states enacting laws to authorize the production, distribution and possession of marijuana must "establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance." According to the DOJ’s public announcement of August 29, 2013:
These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time. But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.
Whether Director Bax’ vision for interim medical marijuana access meets the DOJ’s view of an "appropriately strict regulatory system" could become an issue for Florida.
3. ATTORNEY GENERAL JEFFERSON SESSIONS, III
President-elect Donald Trump announced his decision to nominate Senator Jefferson Sessions, III to become the next Attorney General of the United States. Senator Sessions has not yet been nominated, because Mr. Trump has not yet been sworn in as president. Nevertheless, the Senate Judiciary Committee proceeded with "confirmation" hearings this week.
As expected, the hearings covered a wide range of issues, from immigration and civil rights to gun control and federal forfeiture policies. Marijuana also came up during the hearings, albeit with comparatively little attention.
Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, questioned Senator Sessions on whether he felt that the current federal policies on marijuana, effectively deferring to the states, were appropriate and should be continued as a prudent allocation of limited federal resources? The putative nominee responded:
LEAHY: . . . . WOULD YOU USE OUR FEDERAL RESOURCES TO INVESTIGATE AND PROSECUTE SICK PEOPLE WHO ARE USING MARIJUANA IN ACCORDANCE WITH THEIR STATE LAWS, EVEN THOUGH IT MIGHT VIOLATE FEDERAL LAW?
SESSIONS: WELL, I WON'T COMMIT TO NEVER ENFORCING FEDERAL LAW, SENATOR LEAHY. BUT ABSOLUTELY IT'S A PROBLEM OF RESOURCES FOR THE FEDERAL GOVERNMENT. THE DEPARTMENT OF JUSTICE UNDER LYNCH AND HOLDER SET FORTH SOME POLICIES THAT THEY THOUGHT WERE APPROPRIATE TO DEFINE WHAT CASES SHOULD BE PROSECUTED IN STATES THAT HAVE LEGALIZED AT LEAST IN SOME FASHION SOME PARTS OF MARIJUANA.
LEAHY: DO YOU AGREE WITH THOSE GUIDELINES?
SESSIONS: I THINK SOME OF THEM ARE TRULY VALUABLE IN EVALUATING CASES, BUT FUNDAMENTALLY THE CRITICISM I THINK THAT WAS LEGITIMATE IS THAT THEY MAY NOT HAVE BEEN FOLLOWED. USING GOOD JUDGMENT ABOUT HOW TO HANDLE THESE CASES WILL BE A RESPONSIBILITY OF MINE. I KNOW IT WON’T BE AN EASY DECISION, BUT I WILL TRY TO DO MY DUTY IN A FAIR AND JUST WAY.
(Emphasis added).
Later in the same hearing, Senator Mike Lee (R-UT) raised the marijuana issue from a different vantage. After a long exegesis on the meaning of federalism, Senator Lee asked if the DOJ’s deferral policy created a constitutional Balance-of-Powers problem because the executive branch was declining to enforce laws expressly adopted by the legislative branch? Senator Sessions responded with a telling answer:
LEE: . . . ARE THERE SEPARATION OF POWERS CONCERNS ARISING OUT OF THE DEPARTMENT OF JUSTICE'S CURRENT APPROACH TO STATE MARIJUANA LAWS?
SESSIONS: WELL, I THINK ONE OBVIOUS CONCERN IS THAT THE UNITED STATES CONGRESS HAS MADE THE POSSESSION OF MARIJUANA IN EVERY STATE AND DISTRIBUTION OF IT AN ILLEGAL ACT. SO IF WE NEED TO -- IF THAT'S SOMETHING THAT’S NOT DESIRED ANY LONGER, CONGRESS SHOULD PASS A LAW TO CHANGE THE RULE. IT IS NOT SO MUCH THE ATTORNEY GENERAL'S JOB TO DECIDE WHAT LAWS TO ENFORCE. WE SHOULD DO OUR JOB AND ENFORCE LAWS EFFECTIVELY AS WE ARE ABLE.
Historically, Senator Sessions has been very vocal in his opposition to legalization of marijuana. However, during his appearance before the Senate Judiciary Committee, he was indefinite in his answers on the tension between federal prohibitions and state legalizations of marijuana. Perhaps most telling, Mr. Sessions was clear that the Attorney General’s duty is to enforce the law, and that if Americans want marijuana legalized they should direct Congress to change the federal laws.
Ultimately, Attorney General Sessions will do what President Trump tells him to do. Mr. Trump in the past has indicated that he is in favor of legalizing medical marijuana, but not recreational marijuana. Of course, as Americans already have seen, Mr. Trump’s presidential pronouncements can be somewhat mercurial, and certainly subject to change.
Many marijuana industry members and advocates are taking solace in the fact that Senator Sessions did not vow to abandon current DOJ policies and vigorously prosecute existing federal laws criminalizing cannabis. More objective observers acknowledge that it’s just too early to tell. Ultimately, Florida and the rest of America must await the decision of President Trump – something that is nothing if not unpredictable.