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Florida’s New Medical Marijuana Law: What Physicians and Entrepreneurs Need to Know

The Legislation implementing the medical marijuana amendment Florida voters approved last fall is on its way to the Governor.  On June 9, 2017,  during a special session, the Florida Legislature passed SB 8A and SB 6A, implementing Article X, section 29 of the Florida Constitution.  Florida Governor Rick Scott is expected to sign both bills into law and new laws will become effective immediately upon signature.

The following are among the key provisions in Florida’s new medical marijuana use law:

  • Qualifying Medical Conditions. To qualify for medical marijuana, a patient must be certified by a licensed Florida physician as having at least one of the following qualifying conditions:

    • Cancer

    • Epilepsy

    • Glaucoma

    • HIV/AIDS

    • PTSD

    • ALS

    • Crohn’s Disease

    • Parkinson’s Disease

    • Multiple Sclerosis

    • A condition of the “same kind or class” (though the precise meaning of this phrase is not further defined)

    • Patients also qualify if they have chronic pain related to a qualifying condition or are terminally ill

  • Physician Certification. To recommend medical marijuana, a physician must diagnose a patient with a qualifying condition and conclude the medical use of marijuana would likely outweigh the potential health risks to the patient. The physician must be physically present in the same room as the patient when conducting this examination.  Click here for our prior discussion of Florida medical marijuana and telemedicine examinations.

  • Re-Certification and Exams. Once the initial certification is issued, the physician must re-evaluate the existing qualified patient at least once every 30 weeks (210 days) before issuing a new certification.

  • No Waiting Period. The 90-day waiting period previously required under the 2014 Compassionate Use law no longer applies.  A qualifying patient may receive a medical marijuana certification during his or her first visit with a physician.

  • Informed Consent. A certifying physician must obtain the patient’s informed written consent for medical use of marijuana each time the physician issues a certification for the patient.

  • 70-Day Supply. Patients can obtain a marijuana certification for a 70-day supply, with two refills (i.e., a maximum supply of 210 days).  The law requires the Florida Department of Health to issue regulations that quantify a daily dose amount when calculating that 70-day supply.  Once the patient has exhausted his or her supply, the patient must obtain a new physician certification.

  • Medical Marijuana Use Registry. The Department of Health will create an online medical marijuana use registry for physicians and patients.  Physicians are responsible for checking the registry to ensure their patient is listed in the registry and must document in the registry that the patient has been certified for medical marijuana use.

  • Patient Registration; Identification Cards. Before obtaining medical marijuana, patients must: 1) provide proof of Florida residency, 2) be registered with the Department of Health in the medical marijuana use registry, and 3) possess a medical marijuana use registry identification card.  No later than October 3, 2017, the Department of Health will issue medical marijuana use registry identification cards for qualified patients.  These cards must be renewed annually.

  • No Smoking. The law prohibits the administration of marijuana in a form for smoking, seeds, or flower (except for flower in a sealed, tamper-proof receptacle for vaping), but allows for edibles and vaping.

  • Pregnant Women and Minors. A physician may only issue low-THC cannabis to a patient who is pregnant.  If a patient is younger than 18 years of age, a second physician must concur with the certification for medical marijuana to be dispensed to the patient.

  • Tax Exempt. Like other medications in Florida, purchases of medical marijuana and marijuana delivery devices will be exempt from state sales-tax.

  • Physician Course and Examination. Before being qualified to certify patients for medical marijuana, a physician must complete a two-hour course and exam administered by the Florida Medical Association or the Florida Osteopathic Medical Association.  Physicians who have already taken a medical marijuana course under the former Compassionate Use law must still take this new course and examination within 90 days of the course becoming available.

  • No Financial Interest. Physicians who certify patients for medical marijuana cannot be employed by, or have any direct or indirect economic interest in, a medical marijuana treatment center or marijuana testing lab.

  • Emergency Rules. The Florida Department of Health will adopt emergency rules necessary to implement the new law.  According to Amendment 2, the Department of Health has until July to issue rules.

It is important to note federal law still criminalizes the possession, use, and sale of marijuana.  The new Florida law does not immunize violations of such federal law or any non-medical use, possession or production of marijuana. 

© 2017 Foley & Lardner LLP

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About this Author

Thomas B. Ferrante, Foley, Healthcare Regulatory Lawyer, Transactional Matters Attorney
Associate

Thomas (T.J.) Ferrante is an associate and health care lawyer with Foley & Lardner LLP, where he focuses his practice on a wide range of transactional and related regulatory issues for health industry clients, including for-profit and not-for-profit hospitals and health systems, multi-specialty physician practice groups, and long-term care providers. Mr. Ferrante has experience with a variety of transactions, including mergers and acquisitions, joint ventures, strategic affiliations, obtaining and maintaining tax-exemption, employment contracts and leases, and other...

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Partner

Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

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