Should Florida Let Patients Smoke Marijuana? A Judge Is Hearing Arguments

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The fight for medical marijuana went to court Wednesday, as the trial began in Orlando attorney John Morgan’s lawsuit against the state’s prohibition on smoking as a method for sick patients to consume the drug.

Morgan, who spearheaded and financed the successful campaign to make medical access to cannabis a constitutional right, filed suit in Leon County last July asking the court to declare unenforceable the law passed by the Florida Legislature and signed by Gov. Rick Scott that implemented the 2016 constitutional amendment.

The law allows for oils, sprays, tinctures, vaping and edibles as a delivery option to patients authorized to use medical marijuana, but it excludes smoking as a method for medical treatment.

Florida voters approved the constitutional amendment authorizing the use of marijuana as a medical treatment for people with debilitating medical conditions in 2016, with 71 percent voting yes. Morgan and his attorneys argue the public intended that access to the drug would be through smoking, in addition to the nonsmoking options authorized by lawmakers.

The law is “directly inconsistent with the text of the Constitution,” said Jon Mills, attorney for the plaintiffs — two marijuana advocacy organizations and two sick patients who are seeking but have not been able to legally obtain marijuana for their ailments.

The definition voters approved included “all types of medical marijuana, including flower, which is smokeable marijuana,” he said. “If the state is able to prohibit smokeable marijuana, why shouldn’t they be able to prohibit vaping? Why shouldn’t they be able to prohibit edibles? Why shouldn’t they be able to prohibit medical marijuana?”

Rachel Nordby, the lawyer for the state, argued that the implementing law is “entirely consistent” with the constitution because the state “has a role in setting parameters and it can absolutely base those parameters on health and safety concerns.”

“The Legislature here has enacted a law that embodies reasonable safety concerns of medical use,” she said. “The Legislature contemplated that it was making the flower form available through vaping” and they accounted for other inhaled methods that was available.”

“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.”

“Here, there are no material facts in dispute,” she said, adding that plaintiffs lacked standing in the case.

Although the measure was written to be self-executing, lawmakers wrote an implementing law that banned smoking marijuana for medical purposes, arguing it would be a “backdoor attempt” at allowing recreational use.

In response, Morgan’s political committee, People United for Medical Marijuana along with Floridians for Care, sued the state Department of Health, claiming that banning smoking as a method of using medical marijuana amounted to trampling on the intentions of voters who voted for the constitutional amendment.

Morgan, whose younger brother was paralyzed at as teenage lifeguard after a diving accident, believes that smoking “is a medically effective and efficient way” to administer the active chemicals in cannabis for patients. He poured more than $4 million into the campaign to pass the amendment and is now bankrolling the lawsuit.

Two of the plaintiffs are Diana Dodson of Levy County, who has HIV and neuropathy, and Cathy Jordan of Manatee County, who has Lou Gehrig’s disease. Both were seated in the courtroom during the hearing before Leon County Circuit Court Judge Karen Gievers.

Dodson told the court that she used medical marijuana in California after she couldn’t keep other medications down for her symptoms. She said she has used all forms of cannabis — from juicing oils and vaping.

“Smoked cannabis works best for me,” she testified. “It’s easier to get the amount that I need and i don’t get too much in my system.”

She said that vaping is “about 50 percent less effective and you had to ingest quite a bit more.” Depending on the preparation, oils are less easy to control, she said.

Jordan said in her deposition that smoking is the only method that works for her and there is no doubt that voters expected that smoking would be an option when they voted for the amendment.

“I can’t do edibles,” she told reporters Wednesday. “The edibles cause terrible, terrible muscle pain in my stomach. … Vaporizing makes me gag.”

But Morgan, who uses the hashtag #NoSmokeIsAJoke, argues that the legislative claim has been a “bogus argument from Day 1,” and that if legislators were truly interested in keeping the public safe from smoking, they would have taxed tobacco “to the hilt.”

The Department of Health’s Office of Medical Marijuana Use, which is tasked with enforcing and overseeing the law’s implementation, has been dogged by delays in getting the measure working for patients.

Among the problems have been a backlog in identification cards for patients and slowdowns in approving dispensing licenses and promulgating various regulations. The office has also struggled to roll out guidelines on a variety of issues related to the new law, including edibles.

The office’s head, Christian Bax, has blamed the delays in part on lawsuits and administrative challenges, although the office also failed to respond to questions from a joint committee of lawmakers for months. The silence frustrated lawmakers during the legislative session so much that they voted in the upcoming year’s budget to hold back $1.9 million in salaries and benefits to pressure it to move faster on implementing parts of the law.

If Morgan’s lawsuit prevails, the state Department of Health would be tasked with writing rules regarding the new directive.