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House Committee Advances Medical Marijuana Bill to Expand Research

Attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 9, 2020, a U.S. House of Representatives committee advanced a bill to expand access to marijuana for research purposes. The House Committee on Energy and Commerce voted unanimously by voice vote in favor of HR 3797, the Medical Marijuana Research Act of 2019. The bill would: “amend the Controlled Substances Act to make marijuana accessible for use by qualified marijuana researchers for medical purposes, and for other purposes.”

HR 3797 – Medical Marijuana Research Act.

The amendment to existing federal law would allow researchers to use “marijuana products available through State-authorized marijuana programs” until there are federally-approved suppliers who can meet the demand of the federal researchers. More specifically, there will be no limit on the number of entities that could be federally approved to cultivate and distribute cannabis for research purposes. Additionally, the Secretary of Health and Human Services would be required to submit a report to Congress that includes a review of cannabis research and a note on whether cannabis should be rescheduled on the drug schedules that are used to decide what drugs are controlled substances.

The amendment also takes care of a problem in the law it amends to prevent government law enforcement officials from interfering with the sale or distribution of research marijuana.


Advancement in Cannabis Cultivation.

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, (NORML) said in a statement that the amendments to the law advanced by the bill were “necessary and long overdue.”

“Rather than compelling scientists to access marijuana products of questionable quality manufactured by a limited number of federally licensed producers, federal regulators should allow investigators to access the cannabis and cannabis-infused products that are currently being produced in the legal marketplace by the multitude of state-sanctioned growers and retailers,” Armentano said.

George F. Indest III, President and Managing Partner of The Health Law Firm also stated: “This is a law that is necessary and long overdue.” He urged everyone to contact their U.S. Representative and Senators and ask them to vote in favor of it.

The next step for the bill is a vote on the House floor; however, it is unclear whether this will happen and when it will happen, given everything that is occurring at present.

To read HR3797 in full, click here.

EVERYONE SHOULD WRITE THEIR U.S. CONGRESSIONAL REPRESENTATIVE AND THEIR TWO SENATORS AND REQUEST THAT THEY SUPPORT THIS BILL.

Click here to go to our Marijuana Law Blog page and read my prior blog on this subject to learn more.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting, and/or licensing while complying with Florida law. We can also represent doctors, pharmacies, and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Reisman, Sam. “House Committee Advances Medical Marijuana Research Bill.” Law360. (September 9, 2020).

Rashidian, Nushin. “Key House Committee Advances Cannabis Research Bill.” Cannabis Newswire. (September 9, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

 

Florida Department of Health Claims Orchid Nursery Has No Constitutional Protection In Pot Licenses

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On August 27, 2020, the Florida Department of Health (DOH) argued to the United States Eleventh Circuit Court of Appeals that a Florida nursery can’t claim the 14th Amendment to the U.S. Constitution protects its right to marijuana licenses. The DOH urged the appellate court to uphold the dismissal of Louis Del Favero Orchids’ suit because, it claimed, the U.S. Constitution doesn’t cover a property interest in a business that is illegal under federal law. This seems to be a rather hypocritical argument in that the counter-question could be “How can the state of Florida issue licenses for or control a business that is illegal under federal law?”

Is the Law Constitutionally Protected?

The would-be medical pot nursery operator has been fighting since 2016 to get one of the state’s few medical marijuana licenses. It has been involved in ongoing litigation in state court over Florida’s medical marijuana licensing process.

The nursery claims that the U.S. Constitution protects a property right to the licenses even if Congress has outlawed marijuana because the right itself is created by state law. In its suit, Louis Del Favero Orchids said that the property right itself originates in Florida state law, specifically, the law that legalized medical marijuana. Federal law can only determine “whether a given property interest rises to the level of a protected property interest,” the nursery argued in its brief.

According to the nursery’s brief, it sought damages and an injunction requiring the state of Florida to grant the company a hearing on its application for a medical marijuana license. You can read the nursery’s brief here.

Property Right in the “Process of” the Issuance of a Medical Marijuana License?

The Florida nursery filed its case first in federal court in June 2019. But in November 2019, the federal judge threw out the suit, deciding that the company had a property interest in the pot license under state law, but not under the 14th Amendment to the U.S. Constitution. The lower court decided that if Congress has legislated that marijuana is against the law, then it can’t be property protected by the U.S. Constitution. As a result, this decision, the nursery quickly appealed the ruling to the Eleventh Circuit.

In the brief it filed in the Court of Appeals, the Florida DOH urged the Eleventh Circuit to uphold the district court’s decision. It argued that not only is the right to a medical pot license not protected by the 14th Amendment, but there’s no property right in the process of medical marijuana licensure, the DOH told the court.

Click here to read the Florida DOH’s brief in full.

What the case does not discuss is the fact the Florida Constitution contains a provision identical to the 14th Amendment of the U.S. Constitution, in its Article 1, Section 9, which states: “Due process.—No person shall be deprived of life, liberty or property without due process of law. . . .” However, if the federal court’s decision stands, then this would be a matter solely based on Florida law and not one for the federal courts.

To learn more about their ongoing litigation in Florida involving medical marijuana issues, click here.

Click here to go to our Marijuana Law Blog page and read my prior blog on this subject to learn more.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting, and/or licensing while complying with Florida law. We can also represent doctors, pharmacies, and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Jones, Diana. “No Constitutional Right To Pot Licenses, Fla. Tells 11th Circ.” Law360. (August 27, 2020). Web.

Jones, Diana. “Nursery Tells 11th Circ. Pot License Constitutionally Protected.” Law360. (June 29, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

 

 

Florida Defends Medical Marijuana Law in High-Stakes State Supreme Court Battle

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 6, 2020, in a highly-important case for the medical marijuana industry in Florida, the state defended its regulatory framework before the Florida supreme court. The case focuses on whether Florida has properly carried out a 2016 constitutional amendment that broadly legalized medical marijuana for patients. The Florida Department of Health (DOH) argues that there is no conflict between the voter-approved medical marijuana amendment and the state’s caps on providers.

Ongoing Battle in the Courts.

The case primarily centers on a requirement that the Legislature put in the 2017 law about marijuana firms allowed to operate in the state. That requirement says the companies must be able to handle all aspects of the business, including growing, processing, and distributing products. The Florida DOH appealed to the Supreme Court after lower courts sided with Florigrown, a Tampa-based company. For several years, Florigrown has unsuccessfully sought approval to become a licensed medical-marijuana operator in Florida. Click here to read my prior blog and learn more.

Arguing Over Semantics.

The key part of the case focuses on the text of the amendment in determining whether the vertical integration model is proper. The language in question is the difference in the words “or” and “and” in the amendment’s definition of a medical marijuana treatment center (MMTC).

The constitutional amendment defined MMTCs as “an entity that acquires, cultivates, possesses, processes … transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials.”

Meanwhile, the implementing 2017 law defines MMTCs as an entity that “cultivates, processes, transports and dispenses marijuana for medical use.”

Florigrown argues that the switch from “or” to “and” creates wording that establishes the vertically integrated system, as it establishes a need to perform all aspects of the business.

In its defense, the Florida DOH argued that the 2017 law does not directly conflict with a “proper, textual interpretation” of the constitutional amendment and directly calls for regulations on the availability and safe use of the substance.

To read more on this ongoing case and Florigrown’s lawsuit, click here to read my prior blog.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Saunders, Jim. “Case challenging Florida law on medical marijuana licenses may hinge on ‘and’ vs. ‘or’.” Miami Herald. (May 6, 2020).

Bolado, Carolina. “Fla. Defends Medical Pot Regulations Before State High Court.” Law360. (May 6, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Florida DOH Issues Emergency Rules for Medical Marijuana Treatment Centers

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Effective December 10, 2019, emergency rules for the regulation of medical marijuana treatment centers (MMTCs) were issued by the Florida Department of Health (DOH). Also issued were notices of proposed rules to provide further regulation for background screening and renewal applications.

Emergency Rules.

In Florida, emergency rules may be adopted if an administrative agency finds there is an immediate danger to the public health, safety, or welfare. Such rules are effective for 90 days while an agency undertakes the formal rulemaking process. Agency rulemaking is subject to challenge under Florida’s Administrative Procedures Act (APA), which allows those who have a substantial interest in the prosed rules to challenge them. This means implementation could be delayed.

Rule 64ER19-7, Florida Administrative Code–Background Screenings for MMTCs.

The new Florida administrative rule, Rule 64ER19-7 of the Florida Administrative Code (FAC) requires MMTCs to ensure that all employees, owners, and managers of an MMTC pass a background screening check before being allowed to serve in such a role at the MMTC. The rule also includes extensive background and record-keeping requirements for MMTCs.

Under the rule, MMTCs have an ongoing obligation to report certain arrests of any employee, owner, or manager to DOH within 48 hours of becoming aware of the arrest. MMTCs failing to meet these requirements will be subject to discipline. Click here to view the rule in full.

Rule 64ER19-8–Renewal Applications for MMTCs.

The second rule, 64ER19-8, FAC, concerns renewal applications for MMTCs. Each MMTC is required to submit a renewal application, along with a renewal fee. Those initially licensed between July 31, 2017, and October 31, 2017, must submit a renewal application. The renewal application must be received no later than February 28, 2020. After submission of these applications, the renewals are then biennial.

All other MMTCs shall submit a renewal application biennially, which must be received by the DOH at least 30 days, but not more than 60 days before the license expires. Renewal applications that are not received by the DOH on or before the deadline will not be considered. It is crucial that all MMTCs be aware of these deadlines, calendar these deadlines and be sure there is an action taken on such renewals. Click here to view the rule in full.

For more information and to view the complete list of proposed rules and rule development, visit the Florida DOH website here.

To stay on top of medical marijuana legislation in Florida, read my prior blog here and be sure to visit our Marijuana Law Blog regularly.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly help to complete and submit the applications for renewals, registration, permitting and/or licensing, complying with Florida law. We also represent health facilities, health clinics, and pharmacies facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Stanfield, Timothy. “Florida’s Department of Health/Office of Medical Marijuana Use Issues Emergency Rules and Notices of Rulemaking.” National Law Review. (January 8, 2020). Web.

Newlon, Amanda. “Client Alert: Florida Issues Emergency Rules and Notice of Rulemaking for MMTCs.” JD Supra. (January 22, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Florida Appeals Court Says Medical Marijuana Statute Unconstitutional

Attorney George Indest headshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On July 9, 2019, a Florida appellate court ruled that the Florida Legislature’s approach to regulating medical marijuana is unconstitutional. If the ruling stands, it would require state health officials to begin registering medical-marijuana firms to do business and lift existing caps on how many medical marijuana treatment centers can operate in Florida.

Changes to Florida’s Medical Marijuana Legislation.

The First District Court of Appeal said on July 9, 2019, that the Florida Legislature’s law conflicts with the amendment to the Florida Constitution, specifically, the portion that defines a medical marijuana treatment center or MMTC. Florida’s current amendment requires MMTC’s to grow, process and distribute cannabis and all related products.

The Florida Court of Appeal ruled that this created an “oligopoly” or a vertically integrated business model. By requiring treatment centers to also produce and distribute their products, the state has created a system that favors large businesses. The state law requires business entities desiring to participate in the retailing of medical marijuana to “conform to a more restricted definition” than what is set forth in the amendment, the majority said.

The court found “it is in the public interest” to require health officials to register medical marijuana operators “without applying the unconstitutional statutory provisions.” But that finding “does not support requiring the department to immediately begin registering” medical marijuana operators at this stage of the proceedings, the majority decided.

Click here to read the court’s opinion in full.

To read one of my prior blogs on the status of medical marijuana in Florida, click here.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Kam, Dara. “Medical marijuana: Florida law creates ‘oligopoly’ for pot businesses, court decides.” Orlando Sentinel. (July 10, 2019). Web.

Simpson, Dave. “Fla. Medical Marijuana Statute Deemed Unconstitutional.” Law360. (July 9, 2019). Web.

Gainey, Blaise. “Florida Courts Rule Medical Marijuana Scheme Unconstitutional. What’s Next?” WUSF. (July 11, 2019). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

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