By Bart Schaneman
Florida lawmakers failed to agree Friday to rules governing the state’s upcoming medical marijuana industry.
But that apparently hasn’t stopped some licensed businesses in Florida’s existing CBD-focused program from selling full-strength medical marijuana to any registered patient.
The sales apparently have occurred for months and involved thousands of patients – not just the small number of terminally ill people who could begin buying high-THC cannabis last year under Florida’s CBD program.
That has raised questions about the legality of full-strength MMJ sales to the broader patient population before regulations for the new program have been ironed out.
A source close to the situation insisted the sales are legal, given that 70% of state voters last November approved Amendment 2 legalizing full-strength medical cannabis for a broad swath of patients.
“It’s amazing how clueless people are about what’s going on in Florida,” said the source, who declined to be identified. “It’s been legal for a while and everyone seems to be very surprised about it when they find out we’re selling marijuana here.”
The source said the sales of full-strength MMJ to patients are based on the medical conditions list outlined in Amendment 2.
Some legal experts, however, question whether companies selling full-strength MMJ to patients who aren’t terminally ill have jumped the gun.
That’s because a regulatory framework governing the new MMJ program remains a work in progress. It’s now up to the Florida Department of Health to write the rules after state lawmakers failed to agree on compromise legislation by last Friday, the end of the legislative session.
“It’s a very gray area, to say the least,” said Matt Ginder, a cannabis attorney in Boca Raton, Florida.
Jeff Sharkey, the executive director of the Medical Marijuana Business Association of Florida, agreed.
“I know everybody wants to expand their business, but until these rules are adopted, it would seem to me questionable whether or not they could sell to patients for which the program has not been authorized,” he said. “Some people think (the amendment) is self-actualizing. But it’s really not.”
Regulations up in the air
That gray area is likely to persist until the health department finalizes the rules. It faces a July 3 deadline.
After Florida lawmakers failed to agree on a bill to help guide the rulemaking process and open the medical marijuana market to new growers and dispensary operators, the state’s larger MMJ market remains in the hands of the existing seven CBD license holders.
Initial estimates by Marijuana Business Daily forecast that dispensary sales in Florida could hit $600 million-$800 million a few years after the new program launches.
MMJ advocates had hoped a legislative bill implementing the program would have expanded the number of business licenses. The health department would then have written rules to match the legislation.
But the House and Senate failed to agree on compromise legislation.
The House-passed version would have created a license for the existing seven businesses, allowing them to open an unlimited number of cultivating and processing facilities. The number of dispensaries would have been capped at 100 per license.
“It essentially handed the market to those companies,” Ginder said of the seven. “The House was taking a free-market approach for a select few companies.”
The Senate didn’t take up the measure, effectively killing it.
Ben Pollara, with Florida For Care, who has been working on legalization of MMJ for 4½ years, said the failure came down to House-Senate politics.
“On Day 60, they couldn’t strike a deal on some reasonable issues, so the whole thing fell apart,” Pollara said.
Pollara wants the Legislature to call a special session to iron out the legislation. But if that doesn’t happen, his group is hoping to work with the health department for “a reasonable medical marijuana implementation.” Following that, Florida For Care will lobby the Legislature next year to get a defining statute on the books.
In the meantime, a few doctors across the state continue to write recommendations for full-strength marijuana for patients who are not just terminally ill, according to the source close to the situation.
This person added he is “absolutely” confident such sales are legal in part because of a 2016 law allowing the sale of certain full-strength medical cannabis to terminally ill patients.
Bart Schaneman can be reached at firstname.lastname@example.org