Now that Amendment 2 on medical pot has been approved by Florida voters, the hard work of creating a fair but flexible regulatory scheme to oversee the implementation is critically important.
Though I was adamantly against passage of the amendment, Smart Justice and I will continue to be an interested stakeholder on this issue to make sure that Florida is indeed a leader in implementing it correctly and that we’re a model for other states to follow.
Sen. Dana Young, chair of the Health Quality Committee, has already heard some initial thoughts about the amendment in the committee's first meeting in December, but there still needs to be a robust discussion about 10 key issues that will determine whether this amendment is implemented well or not.
1. Three years ago, when this issue first came to be, Smart Justice called for an annual appropriation of $3 million a year for medical research for at least 5 years, and I’m so happy to see that future Senate President Bill Galvano is calling for research dollars for Moffitt Cancer Center and Shands Hospital. If Florida is truly going to be a leader on medical pot, and if we’re going to do it right as all elected officials desire, then Florida should take the lead to initiate proper research so that we’ll eventually be able to answer the questions as to dosage and optimal delivery methods and treatment timing for each disease based on the age and weight of the patient, and at what stage they’re in their disease. The feds haven’t done this and no other state has either. Though GW Pharma is in Stage III research now at the University of Miami on pediatric care, we will need much more sustained research to be able to answer the important concerns for other diseases -- and for more than just kids.
2. The appropriate licensing of caregivers is critical, as this is the most likely place that abuse will occur. Can a fraud-proof license ID card be developed? So far, we can’t even keep fake driver's licenses out of the wrong hands, so what makes us think this problem can be readily solved? Next, the cards must be issued within 9 months or else John Morgan is going to start suing on behalf of access-denied patients. Is that really possible? No, and that’s why it was written that way so that Morgan can be his litigious self and make even more money. Is it possible to mitigate legal action by Morgan against the state, say, when the rule is challenged and card issuance is delayed beyond the time limit? How can we reliably know that caregivers will stick to the limit of “patients” called for in the amendment? And most importantly, how do we know that the caregivers won’t steal pot for themselves before it’s delivered? Will caregivers be regularly tested to ensure that they aren’t partaking?
3. Regulating the packaging and sale of pot edibles so that it’s not enticing to children is relatively easy to do. But if we can’t keep opioid prescriptions out of the hands of older children when they raid their parents' or siblings' medicine cabinets, how are we going to keep full-strength pot out of kids' hands, whatever age they are? Tamper-proof is a given, but that won’t stop anyone over the age of 5 from getting access.
4. The need for law enforcement to be able to have 24-hour access to growing facilities and/or dispensaries is significant to insure compliance and that nothing nefarious is going on. This unfettered access is going to be a major point of contention with the manufacturers, I’m sure.
5. State control versus local control on the number and placement of growing facilities and dispensaries is also going to be very contentious. It’s a zoning issue and certainly the state will use its preemption powers to insure access, but will there be a bright line of demarcation? And will local government have the ultimate right to decide how close or far schools, churches, playgrounds must be from medical-pot access points?
6. There has been little-to-no input from the medical profession on pot. Is the current required class for physicians who want to be able to “recommend” pot to their clients sufficient to protect patients' interests? Will there be enough physicians, geographically disbursed, around the state so that patients who seek medical pot will be able to create and sustain the 90-day relationship required to get the pot? Shouldn’t pharmacists also be a part of this equation as they’ll be dispensing regular prescriptions to some of these same patients; and they may or may not know that the patient is taking medical pot and thus unknowing about the potential side effects or conflicts? I’m sure some doctors will ask the question, but will every one of them ask every time? How will the Department of Health monitor physicians on this, since they had such a difficult time keeping tabs on all the pill-mill doctors?
7. The Legislature needs to re-visit the current statute that was recently passed -- the one that affords full-strength pot to those who are dying. But it’s limited to those the doc says will die in one year. Isn’t that rather arbitrary? What about the person who is going to die in 14, 18 or 22 months? Do they have to suffer until they get to the one-year mark? Does that really make sense? And, on the other end, what happens if the person doesn’t die as soon as expected and continues to live? Will they still be entitled to pot?
8. Will the Department of Health be able to provide consistent and uniform oversight of each of the growers from “seed to sale?” How often will they inspect the growers both at their growing facilities and at their dispensaries? Will they also inspect the vehicles used for transport? What happens if the truck is late and it arrives on a hot, Friday summertime evening at the dispensary and the facility is closed? Will the vehicle be air conditioned overnight on the weekend so mold doesn’t grow?
9. The amendment says the growers have no liability. It’s now in our Constitution. So, what happens when human error causes someone to die or be permanently injured because proper precautions and regulations weren’t followed? Will this just be a licensing issue?
10. Florida doesn’t tax certain medical products. Will the “manufacturers” or growers be taxed at all to cover the cost of inspection and caregivers? Given that the number of growers is limited, albeit recent administrative hearing officer decisions to the contrary, will they be taxed like other manufacturers? Or will they escape as some on-line retailers? The growers will surely argue they are producing a medical product. Will that argument pass the smell test?
These issues are legitimate concerns. The test will be whether the Legislature can address these issues -- and many more I haven’t even thought of yet -- in a 60-day session.
That’s why the arbitrary deadlines in the amendment are there, because Morgan is betting the state doesn’t get the job done in a timely manner. That’s why Morgan created an entire new field of law -- marijuana law -- because he intends to get rich suing the state, or local governments that attempt to unnecessarily restrict -- in his opinion -- access to medical pot.
He was quoted as saying throughout the two campaigns that he wouldn’t use the argument that it’s now a constitutional right, but that will get broken the first time he goes to court. This may be about helping those who are sick and dying, but it’s also about Morgan making more money by being litigious. I hope I’m wrong, but I’ve known Morgan for more than 30 years and I believe I’ll be proved correct in my prediction.
Barney Bishop III is the president and CEO of the Florida Smart Justice Alliance, a non-profit dedicated to criminal justice reform from a center-right perspective that maintains public safety first and advocates for common-sense solutions for those with behavioral healthcare issues so they can become productive citizens and not recidivate. These are expressly his views and not necessarily those of Smart Justice.