Ben Pollara: Fixes that can make Florida's medical marijuana law work

Florida House Speaker Steve Crisafulli is right: no one has really made the case to him or anyone that the statutory language of SB 1030, legalizing low-THC medical marijuana, is flawed; but it absolutely is and must be fixed legislatively.

I’m willing to accept partial blame here. The conversations surrounding 1030 have largely been driven by two groups of political actors: advocates like me, who have criticized the law as weak, while pushing for a much broader law like what was on the 2014 ballot or in the current bills by Sen. Jeff Brandes and Rep. Greg Steube; and industry players like Costa Farms and the Stanley Brothers, who have focused their energies (and lobbying/legal teams) on creating a more favorable business model within the confines of the law.

My position – and the position of the advocacy organizations I head, Florida for Care and United for Care – remains that “Charlotte’s Web” doesn’t go far enough to help all sick and suffering Floridians. But it can help some of those suffering, with statutory changes. The perfect should never be the enemy of the good, so I’d like to weigh in on this debate.

Putting aside the issues with the business model the law establishes (which have already been exhaustively addressed by those who seek to profit from it) here are some fixes that the Legislature must make in order for the law to work for patients and industry. These changes all primarily apply to the one group noticeably absent from this dialogue, physicians:

• The requirement that physicians “order” medical marijuana must be changed to “recommend” or “certify the use of.” As a DEA Schedule 1 substance, physicians are at risk of losing their DEA licensure and potentially being prosecuted for prescribing marijuana (or any Schedule 1 drug). Legally, the term “order” is identical to “prescribe.” Without this simple change, most conscientious physicians will simply not put themselves at the risk of providing this treatment option to their patients.

• The language, “if no other satisfactory alternative treatment options exist for that patient,” leaves doctors liable in a potential malpractice tort to a nebulous argument that an alternative did in fact exist.
• Following the previous points, for minors – which were a primary concern of the debate on SB 1030 in the 2014 session – a second physician must concur with the order of medical marijuana, making the process even more onerous and subjecting a second doctor to liability for the same reasons cited above.
• The requirement that dispensing organizations employ a physician onsite also presents a significant liability to doctors. Massachusetts had a similar requirement in its regulations (not statutes) and the DEA weighed in, threatening the registrations of doctors either employed by or on the board of such organizations.
• Finally, and particularly problematic given the crucial roles of doctors in this whole process, there are zero liability protections afforded to said doctors. Opponents of the constitutional amendment repeatedly said that the liability protections it provided were too broad, but I never heard anyone argue that no such protections should exist. In fact, they must in order for a medical marijuana law to function properly.

So Speaker Crisafulli (and Rep. Matt Gaetz, Sen. Rob Bradley and others in the Legislature who argue that 1030 must be implemented fully before attempting a more comprehensive bill like Sen. Brandes’ or Rep. Steube’s), I implore you to consider these statutory changes if you want the good intentions of this law to actually work for the suffering Floridians it could help.

And to the Costa’s and Stanley Brothers of the world, your voice is needed here as well. A better functioning business model is irrelevant if doctors won’t recommend medical marijuana to the patients who would patronize your nascent businesses.

I hope the Florida Medical Association and other groups representing doctors read this. If these changes are not made, good, upstanding doctors will not recommend this treatment to their patients. Without these relatively simple fixes the only doctors making these “orders” will be those unethical practitioners who profited from pill mills a few years ago.

The genesis of this debate is the core of this (and any) medical marijuana law: the doctor-patient relationship. Politics and special interests might have obscured that in recent months, but no matter what your motive for wanting this law implemented, if that relationship is ignored this law will never function properly, except to line the pockets of shady doctors looking for their next prescription racket.

Of course, another solutions exists: scrap 1030 altogether and pass the Brandes and Steube bills this session. Just make sure doctors are appropriately protected in doing so.

Ben Pollara was the campaign manager for the organization that advocated for the passage of Amendment 2 in the 2014 general election. Column courtesy of Context Florida.