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Florida Patients Fight for the Right to Spark Up

Florida medical marijuana patients took their fight to smoke marijuana to court Wednesday in Tallahassee.
PHOTO Sonya Yruel/Drug Policy Alliance


Florida Patients Fight for the Right to Spark Up

Florida’s medical marijuana program currently forbids the smoking of cannabis flower, but patients say this contradicts the law the state’s citizens voted on in 2016.

On Wednesday, Florida medical marijuana patients argued for the right to smoke marijuana during a court case in Tallahassee.

The plaintiffs argued that they already had the right to smoke cannabis because, in the 2016 ballot measure that Florida voters approved, the “medical use” of cannabis was clearly defined and included the right to smoke. This means the state house passed legislation forbidding smoking marijuana, when on the right to do so was already set in stone.

John Morgan, the Orlando attorney who backed Florida’s medical marijuana effort financially, is leading the charge to get the smoking ban tossed out. The day he first filed the case last July, he pointed to Section C6 of Florida’s medical marijuana law, which was voted on two years ago. That section made it clear the amendment does not require the smoking of marijuana be allowed in public, unlike the proper use of medical marijuana in a private place, which is not illegal.

“By redefining the constitutionally defined term ‘medical use’ to exclude smoking, the Legislature substitutes its medical judgment for that of  ‘a licensed Florida physician’ and is in direct conflict with the specifically articulated Constitutional process,” the lawsuit stated, as noted by the Tampa Bay Times.

However, the bill that was signed into law by Florida Gov. Rick Scott to implement the vote allows for oils, sprays, tinctures, vaping and edibles as a delivery option to patients authorized to use medical marijuana.

It goes on to specifically exclude smoking as a method for medical treatment.

The attorney for the state, Rachel Nordby, argued lawmakers were completely within their rights when drafting the implementation bill to make such a change.

“The Legislature here has enacted a law that embodies reasonable safety concerns of medical use,” she argued, according to the Miami Herald. “The Legislature contemplated that it was making the flower form available through vaping.”

“This case is not about what is or what is not marijuana,” she said. “What this case is about is the permissible plain uses of marijuana.”

The lawsuit is a collaborative effort between two medical marijuana organizations in Florida, People United for Medical Marijuana and Floridians for Care. We reached out to Floridians for Care to get their take on how the day in court unfolded.

“We’ll see what the judge ultimately decides, but the case for patients’ constitutional rights to consume their medicine however they and their doctors see fit is extremely straightforward,” Floridians for Care Spokesperson Ben Pollara said in an email to Cannabis Now. “And the case to prohibit smoking, as the law currently does, is in direct conflict with the amendment that 71 percent of Floridians approved in 2016.”

Florida activists like Pollara have had a tough time with the Scott administration. Despite having never vetoed any cannabis legislation, Scott scored a D+ from the folks at NORML in their recent gubernatorial report cards. This is a result of Scott’s trend of over-legislating the will of the voters, and making statements that suggest expanding access to medical marijuana could send patients down a path similar to alcoholism.

However, Scott is term-limited and out of office this year, and it’s tough to imagine his replacement will oppose a policy passed by 71 percent of voters, which is simply a massive majority by democratic election standards.

Kate Bell, a legislative counsel at the Washington, D.C.-based Marijuana Policy Project, has tracked marijuana reform in the Sunshine State in recent years.

“While MPP is not involved in the lawsuit, we did support the United for Care campaign, and I support taking whatever measures are necessary to ensure that patients are protected as Florida voters intended,” Bell told Cannabis Now in an email. “When the initiative passed, the medical use of marijuana was understood to include what is by far the most common means of ingestion, smoking. Patients for whom smoking works best should have that option — especially given how safe cannabis is compared to many of the alternatives, like prescription opioids which cause thousands of deaths in Florida each year.”

The Sun-Sentinel reported last fall that over 50,000 people have already registered for Florida’s medical marijuana program. According to the Florida Department of Health’s website, those patients now have access to 34 dispensaries dotted across the state. Those dispensaries are all operated by 13 permit holders.

The current list of qualifying conditions for medical marijuana in Florida includes cancer, epilepsy, glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease and multiple sclerosis, with room left for similar conditions and terminal patients to get access as needed.

TELL US, do you think smoking should be allowed as a medical treatment?

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