Sun Sentinel: Resolve medical marijuana law this week, too
For a moment on Friday, as Florida leaders announced plans for this week's special legislative session, it was believed medical marijuana would be added to the list of contentious issues on tap for resolution.
After all, if cooler heads could compromise on the year's biggest fight — money for economic development under Enterprise Florida — surely they could agree on the rules that will guide the growth of Florida's budding medical marijuana industry.
Unfortunately, it didn't happen.
Rather, the Florida House and Senate remain deadlocked over how to regulate what's expected to become the nation's largest medical marijuana marketplace.
It shouldn't be so difficult to implement the will of 71 percent of Florida voters, who last November approved a state constitutional amendment that legalizes the use of medical marijuana by people with debilitating conditions. The amendment says the implementing rules must be written by July 3. If lawmakers fail to do their job, the state Department of Health will take over. And history says we don't want that.
To be clear, medical marijuana needs government regulation, despite the bad name given government regulations. This is a medicine, after all. It is either ingested or inhaled. It affects behavior and body chemistry. It is more like alcohol and tobacco than retail consumer goods, and should be regulated as such. On this, everyone agrees.
But as always, the devil is in the details.
Here's our take on the differences, and how to bridge the divide:
Caps on dispensaries: Seven companies currently hold licenses to cultivate, distribute and dispense medical marijuana in Florida. They were chosen a couple years back after lawmakers legalized a non-euphoric strain of marijuana, called Charlotte's Web.
The state health department wrote the implementing rules and gave the licenses to five nurseries — one in each of five regions of Florida. To be considered, a nursery had to have been in business for 30 years and have an inventory of 400,000 plants. Later, two other licenses were awarded to companies that successfully challenged the process. A recent court ruling might mean two more companies get licensed, too.
Incredibly, these licenses aren't limited to cultivating marijuana, a new product for growers who previously specialized in trees, shrubs and house plants. Rather, they give these nurseries exclusive control of the supply chain — from "seed to store" — no matter their lack of experience in manufacturing, prescribing or dispensing drugs.
The winning nurseries quickly teamed up with companies that filled in the gaps. Still, the health department's monopolistic rules created the foundation for today's standoff.
When the legislative session ended on May 8, the House — under Speaker Richard Corcoran — wanted to award another 10 licenses by next July and cap at 100 the number of dispensaries a company could open around the state.
The Senate — under President Joe Negron — also wanted another 10 licenses awarded, but by October, reducing the head-start of the first seven companies, which are busy scooping up investors and securing prime storefront locations. More importantly, the Senate wanted to cap at 15 the number of dispensaries each company could own.
"The House version, with the caps and the timing of new licenses, would give a gigantic advantage to the existing license-holders," says Ben Pollara, who along with Orlando trial attorney John Morgan, led the constitutional amendment drive. By capping a company's retail outlets and giving more companies access to the marketplace, he believes the Senate took the more free-market approach, a value trumpeted by the Republicans who control Tallahassee.
Morgan holds the opposite view. "To me, Negron is the problem. He's the most un-free-market Republican I have ever met. … It's like telling Walgreens you can have five stores in Florida. There's how many counties in Florida? 67?"
Morgan agrees the House proposal "would keep monopolies. It would. But do we care about that? There would be 17 to begin with and other licenses would come with demand. Isn't 17 better than seven?"
Negotiations fell apart on the session's last day after the Senate proposed capping dispensaries at 15, up from 10, but far beyond its starting point of three, then five. The House countered with 50, down from 100. When the counteroffer was quickly rejected, the House amended its bill back to 100. And that was that.
Absent the legalization of recreational marijuana, no one expects today's patient pool — estimated at about 500,000 — will support 17 license-holders with 100 stores. And in the 27 states that have legalized medical or recreational marijuana, no company has more than 25 outlets.
But money-wise, the cap means a great deal to the value of these nursery conglomerates. The Miami Herald recently discovered one company's pitch to investors. It said it expects to gross $138 million in sales by 2021— based on the premise of opening 55 retail outlets. The brochure also said Florida's medical marijuana marketplace is forecast to generate $2 billion a year.
We don't know where the cap should be set, though somewhere around 25 sounds like middle ground — not a free market, but not a closed monopoly, either.
We also agree that 17 is better than seven, and awarding these licenses sooner than later would better allow more companies to compete on product, price and service, which best serves patients.
A few other issues:
Franchises: Both chambers would preserve the "vertical integration" that gives nursery conglomerates control of the supply chain from seed to store. However, the Senate would let these companies subcontract or franchise opportunities. The House would ban subcontracting for any part of the business that touches marijuana, leaving only things like janitorial, security and professional services.
Morgan suggests franchises are the future and companies will make their real money by selling product to them. At issue is who would approve potential franchisees — the company or the state? This doesn't seem an insurmountable obstacle. If franchises help mom-and-pops open businesses and grow jobs, unshackle the chains.
No Smoking: Both the House and Senate would ban people from smoking medical marijuana, a position sure to draw a lawsuit from Morgan. Given that the constitutional amendment says smoking medical marijuana in public places doesn't have to be accommodated, voters clearly anticipated that patients would be able to smoke medical marijuana. Plus, cancer patients have reported greater relief from smoking marijuana than the pill derivative. Lawmakers should avoid committing taxpayers to a lawsuit they're sure to lose. Kill the "no smoking" provision. Let doctors decide the best administration method.
90-day rule: The House proposed making patients wait 90 days before they could get treatment. It's an arbitrary timeframe with no business in law. Again, let doctors decide how best to treat their patients.
Debilitating conditions, including pain: The amendment says doctors may prescribe medical marijuana for patients with debilitating conditions, including cancer, epilepsy, glaucoma, HIV, AIDS, post-traumatic stress disorder, amyotrophic lateral sclerosis, Crohn's disease, Parkinson's disease, multiple sclerosis and "other debilitating medical conditions of the same kind or class."
That last clause is the door-opener. The House proposed that to treat any patient with an unlisted condition, doctors must submit a great deal of justification to the Florida Board of Medicine, a step too far.
However, the House would allow doctors to prescribe medical marijuana for chronic pain. The Senate would not. Rather, the upper chamber said pain must be tied to one of the listed conditions.
Experience elsewhere suggests medical marijuana could help curb the opioid epidemic, which is largely fueled by people taking prescription or illicit drugs for chronic pain. More research is clearly needed. Again, in the interim, lawmakers should trust doctors to do what's best.
Will some doctors violate standards and will some patients misrepresent their conditions? Yes, they will. But by allowing doctors to prescribe medical marijuana for chronic pain, researchers will get a better handle on whether it works. And if it doesn't, changes can be made.
Research: Both chambers want Florida to be a leader in data, analysis and research on medical marijuana. As in other states, patient names will be entered into a registry accessible only to doctors, dispensaries and law enforcement. The research that comes from this registry should help policymakers better understand the landscape and whether changes are needed.
In the final analysis, the two chambers aren't light years apart.
Rather than let bureaucrats write more flawed rules, legislative leaders should commit this week to passing a law that provides proper direction to Florida's new medical marijuana industry.
Award the 10 new licenses this fall. Meet in the lower middle on dispensary caps, maybe 25. And implement the will of the people, who seem to have gotten lost in the debate.
Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Andrew Abramson, Elana Simms, Gary Stein and Editor-in-Chief Howard Saltz.