Medical Marijuana: the “significant” changes facing the state as the result of lifting the smoking ban

by | Jan 17, 2019

In a move that will likely result in significant changes to Florida’s medical marijuana program, Gov. Ron DeSantis  has decided to give the Legislature a chance to reverse the state’s ban on the smoking of the cannabis flower by medical marijuana patients. If the Legislature doesn’t resolve the matter, DeSantis says he’ll drop the state’s appeal of a judge’s ruling striking down the ban.

 “I want people to have their suffering relieved,” DeSantis said at a news conference Thursday afternoon in Winter Park.

DeSantis had suggested in recent weeks he would drop the appeal of a lower court ruling that determined that an implementing bill passed last year by the Legislature banning the smoking of marijuana by patients violated the constitutional amendment.

The new governor has said he believes the ban violates the will of more than 70 percent of the voters who approved the amendment in 2016.

“I think a lot of voters were frustrated that they don’t think that it has been,” DeSantis said last week. “They think there’s been a lot of foot-dragging. So my job is, when the people speak, you have to listen. This was not an amendment that was really that close. It was like 72 percent.”

DeSantis called upon the legislature to abandon the appeal of the court decision that said the ban was unconstitutional. The governor’s decision was welcomed by legislative leaders who vowed to work with the governor on the issue.

“Governor DeSantis has indicated that he prefers a legislative solution rather than a judicial order to bring the issue of implementation of the amendment to a conclusion,” said Senate President Bill Galvano. “A legislative solution has always been my preferred course of action, and we will certainly honor the Governor’s request to bring a bill forward early in session that addresses both his concerns and those raised in litigation. Many Senators share these concerns and have ideas they are interested in advancing, which include forms of treatment. I look forward to continuing those important discussions in the coming weeks.”

“We are encouraged by the announcement the Governor made today and accept the challenge he has laid before us,” said House Speaker Jose Oliva. “Since being sworn in the Governor has acted swiftly on many issues and the Florida House will work with equal speed, in conjunction with our Senate colleagues, to bring a bill to the floor early in session.”

Florida had appealed the lower court’s ruling under former Gov. Rick Scott.

The state argued the amendment didn’t stipulate that smoking had to be permitted. Lawmakers chose to ban smoking citing health reasons, claiming that smoking marijuana was just as dangerous to a person’s health as smoking cigarettes.

Orlando trial attorney John Morgan, who led the drive to pass the amendment, argues smoking was included as a method of ingesting medical marijuana. He points to the section of the amendment that says smoking would not be permitted in public places.

“We did explicitly put in there that it could not be smoked in public,” Morgan said. “Now look, I’m not the smartest lawyer in the world, but if you can’t smoke marijuana in public, it conversely means you can smoke it in private.”

The decision to permit smoking of medical marijuana will pose changes and challenges to patients, physicians and law enforcement.

Christian Bax served as the director of the Florida Department of Health’s Office of Medical Marijuana Use for three years. In an op-ed story published by The Capitolist last month, Bax said that allowing smoking would result in “significant” changes to Florida’s medical marijuana program.

Bax says the most immediate change would be the appearance of whole cannabis flower in medical marijuana treatment centers (MMTC’s). Currently, when patients walk into an MMTC they can chose topical cremes, tinctures, pills and oils to administer the medical marijuana. That will change.

“Flowers would become one of the top-selling products overnight,” Bax wrote. “While consumption of edible and liquid forms of cannabis are growing increasingly popular, smokable cannabis still makes up more than 40 percent of cannabis sales in states like Colorado and Oregon. Without legal edibles yet, this percentage could be significantly larger in Florida.”

Bax says the flower would cost less than the other forms of medical marijuana because it wouldn’t have to be processed as much as the other forms — driving down prices and increasing demand and production of marijuana flowers.

Smoking will present other challenges for the state. Doctors will have to determine new dosing levels for patients. Patients will have to find ways to smoke the flower since state law specifically prevents MMTCs from selling pipes, bongs or wrapping papers.

Law enforcement will face the added challenge in policing marijuana use. Current medical marijuana products are packaged as such and are easily distinguishable as a medical product. It will be more difficult for an officer to decide whether a cannabis flower is legal or a black-market product.

“The bottom line: A victory for Mr. Morgan would send an important signal regarding the direction of Florida’s medical marijuana program,” Bax wrote. “As a state, we can debate about whether that would be a good change or a bad change, but it is hard to argue that it wouldn’t be a significant one.”


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