Florida: A Medical Marijuana State? What Its Legislative History Really Reveals

Florida: A Medical Marijuana State? What Its Legislative History Really Reveals

Is hemp-derived CBD legal in the state of Florida? 

Yes. But of the 30 states in which medicinal marijuana is legal, it’s one of the most restrictive.

Not unlike our federal agencies (DEA, FDA, Congress, etc.), each state seems to have its own special recipe of laws surrounding cannabis, with their own ingredients, and sometimes their own definitions of those ingredients. The state of Florida is no different.

In fact, Florida defines marijuana quite differently in its drug scheduling than the federal government:

Florida’s definition of “marijuana” according to statute 381.986 for the medical use of marijuana:

“Marijuana” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin, including low-THC cannabis, which are dispensed from a medical marijuana treatment center for medical use by a qualified patient.

In statute 893.03 pertaining to drug scheduling, Florida does not include “marijuana.” It simply lists “Cannabis.” Which includes marijuana and anything else derived from the genus Cannabis. It’s meant to be a catchall.

The 2014 Farm Bill (federal law codified as 7 U.S.C. §5940) differentiates industrial hemp from marijuana:

(2) Industrial Hemp 

The term “industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

The Controlled Substance Act (CSA) enforced by the DEA defines “marijuana” in the following way:

The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. 

Revealed above are three different authorities defining marijuana in different ways. Even the DEA excludes some of the parts of the plant that are used to make non-psychoactive hemp products.

But Florida has carefully included every part of the plant without differentiation of low-THC cannabis (practically refusing the term “industrial hemp”). Even Kansas—where medicinal marijuana is still illegal—has enacted laws that differentiate industrial hemp from marijuana and cannabidiol from the state schedule definition of marijuana. 

Like too many cooks in the kitchen, it’s easy to see the egos vying for control of a substance that the World Health Organization (WHO) affirms in a 2017 review of Cannabidiol by its Expert Committee on Drug Dependence that:

In humans, CBD exhibits no effects indicative of any abuse or dependence potential … CBD is generally well tolerated with a good safety profile … To date, there is no evidence of recreation use of CBD or any public health-related problems.

So why all the effort to control a substance (hemp-derived CBDs) that poses no threat, and why all the beguiling drama surrounding cannabis and its legality? 

The answer may be in the motivation of the entity in question, especially since the 2014 Farm Bill. 

Kentucky and Kansas Congresses, for example, support industrial hemp legislation in large part because farmers demand it. From its legislative history since 2014, it is obvious that Florida’s impetus for cannabis legislation is its huge market for medicinal marijuana. And in 2016, the people of Florida were finally able to demand it. In response, the state of Florida created a 78-page act outlining the regulations for the medical use of marijuana. 

Some might also call it a 78-page business plan. 

From a tiny step to a booming medical marijuana industry

Florida’s cannabis legislation history since 2014 can be summed up with three main acts: CS/CS/SB 1030, which became law; the failure of Amendment 2 in 2014; and the passing of Amendment 2 in 2016, which led to SB 8-A, the bill that passed into law allowing for the medical use of marijuana in Florida.

CS/CS/SB 1030 is the Compassionate Medical Cannabis Act of 2014. It allowed low-THC cannabis to be used for patients with “cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms.” It defines low-THC cannabis as containing .8% or less THC and more than 10% cannabidiol (CBD). The low-THC can only be obtained from one of five state-appointed dispensaries. The prescribing physician has to have completed an 8-hour course about prescribing low-THC. Patients have to register with the compassionate use registry, and doctors and dispensaries must continually update with the registry. These are only a few of the restrictions outlined in this compassionate act. Perhaps the only thing that makes the law truly compassionate is that it allots one million dollars a year for research of the effects of cannabidiol on intractable childhood epilepsy. 

Amendment 2 was first put on the ballot in Florida in 2014 by advocates supporting medical marijuana. The initiative would have widened the availability of the types of cannabinoids for a greater range of diseases and disorders. It failed, getting only 57.6% of votes, with a 60% supermajority needed.

Amendment 2 was on the ballot again in the 2016 presidential election, and with a greater voter turnout, won with 71.3% of the vote. From this victory came the creation of Florida SB 8-A, a bill that became law for the use of medical marijuana. It is regarded as one of the most restrictive medical marijuana use programs of the 30 states that have legalized medicinal marijuana. 

Only low-THC cannabis can be used, and it can not be smoked (in 2018 a Florida court ruled the prohibition of smoking herbal marijuana unconstitutional because it went against the will of the electorate). Qualifying patients can only have access to the low-THC cannabis at state-approved dispensaries, and these are supplied by state-approved nurseries partnered with Florida companies. The following is the list of diseases, disorders, and conditions that qualify a patient for medical marijuana in Florida:

(a)  Cancer.

(b)  Epilepsy.

(c)  Glaucoma.

(d)  Positive status for human immunodeficiency virus.

(e)  Acquired immune deficiency syndrome.

(f)  Post-traumatic stress disorder.

(g)  Amyotrophic lateral sclerosis.

(h)  Crohn’s disease.

(i)  Parkinson’s disease.

(j)  Multiple sclerosis.

(k)  Medical conditions of the same kind or class as or comparable to those enumerated in paragraphs (a)-(j).

(l)  A terminal condition diagnosed by a physician other than the qualified physician issuing the physician certification.

(m)  Chronic nonmalignant pain.

This list obviously precludes using CBD for preventative health benefits and for many conditions that CBD can help with, such as sleep disorders, behavioral disorders, and appetite control.  

Notwithstanding the super-restrictive nature of the program, Florida’s medical marijuana market is booming. Here are just a few stats:

  • As of April 20, 2018, more than 100,000 Floridians applied to use medical marijuana, and new registrants are added at a pace of about 3,000 a week.
  • The state has 13 companies with 34 medical dispensaries.
  • About 1,300 doctors have registered to prescribe medicinal marijuana.

The state has had to squirm out of some of its own red tape, reducing required education hours for doctors and upping the number of physicians able to recommend medical marijuana by 48%, thus far in 2018.

Florida has gone to great lengths to differentiate laws regarding hemp-derived CBD from the federal government’s laws. It does not differentiate industrial hemp from cannabis. Instead of the .3% or less content level for the industrial hemp definition, Florida uses low-THC containing .8% or less for their medical marijuana language and specifications.  

It isn’t enough to be aware of the preventative and therapeutic benefits of CBD and medical marijuana. Health care professionals, patients, and consumers deserve to know how cannabis legislation will affect their lives, and what the motivations of their legislators are, which should always be with their constituents first. Is that the case with medical marijuana in Florida?

References

Cadena, Aaron. “Is CBD Legal? The Legal Status of CBD in 2018.” CBD Origin. 22 Jan 2018. Web. Sourced 11 August 2018. https://medium.com/cbd-origin/is-cbd-legal-legal-status-of-cbd-2018-d1b4a0ed42df

Arnold, Kyle. “Florida’s young medical marijuana industry takes off.” Orlando Sentinel. 28 April 2018. Web. Sourced 11 August 2018. http://www.orlandosentinel.com/business/consumer/os-bz-medical-marijuana-shops-20180426-story.html

Florida Statute 381.986. The 2018 Florida Statutes. Sunshine Online. Web. Sourced 12 August 2018. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0381/Sections/0381.986.html

Florida Statute 893.13. The 2018 Florida Statutes. Sunshine Online. Web. Sourced 12 August 2018. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0893/Sections/0893.13.html

7 U.S. Code § 5940 – Legitimacy of industrial hemp research. Legal Information Institute, Cornell Law School. Web. Sourced 11 August 2018. https://www.law.cornell.edu/uscode/text/7/5940

Title 21 United States Code (USC) Controlled Substances Act. U.S. Department of Justice/Drug Enforcement Administration. Web. Sourced 11 August 2018. https://www.deadiversion.usdoj.gov/21cfr/21usc/802.htm

Kansas Senate. KS SB 263. LegiScan. Web. 13 June 2018. https://legiscan.com/KS/bill/SB263/2017

Kansas Senate. KS SB 282. LegiScan. Web. 13 June 2018. https://legiscan.com/KS/bill/SB282/2017

Lee, Martin A. “CBD’s Uncertain Future: Raids or Riches?” Project CBD. 4 April 2017 Web. Sourced on 11 August 2018. https://www.projectcbd.org/raids-or-riches-future-of-hemp-cbd-oil

“CANNABIDIOL (CBD) Pre-Review Report Agenda Item 5.2” World Health Organization. 6-10 November 2017. Web. Sourced 12 August 2018. https://hempsupporter.com/wp-content/uploads/2018/02/WHO-CBD-report.pdf

The Florida State Senate. CS/CS/SB 1030: Cannabis. Web. 2014. Sourced 11 August 2018. https://www.flsenate.gov/Session/Bill/2014/1030

The Florida State Senate. SB 8-A: Medical Use of Marijuana. Web. 2017. Sourced 11 August 2018. https://www.flsenate.gov/Session/Bill/2017A/00008A.

Sweeney, Dan. “Medical marijuana: On the ballot in 2016?” Sun Sentinel. 7 November 2014. Web. Sourced 12 August 2018. 

http://www.sun-sentinel.com/news/politics/fl-medical-marijuana-postmortem-20141109-story.html

“Florida: Court Strikes Down Legislative Ban On Medical Cannabis Smoking.” Norml. 31 May 2018. Web. Sourced 12 August 2018. 

https://norml.org/news/2018/05/31/florida-court-strikes-down-legislative-ban-on-medical-cannabis-smoking

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