FLORIDA MEDICAL ASSOCIATION

Florida
Physician
Medical
Marijuana
Course

Provided by Florida Medical Association and Florida Osteopathic Medical Association

 FLORIDA MEDICAL ASSOCIATION

2 HOUR MEDICAL MARIJUANA COURSE

Contents

Florida Law Regarding “Medical Marijuana”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The law prior to 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The law between 2014 and 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The law after Amendment 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SB 8-A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The physician must first complete this course.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The physicians must determine if the patient has a qualifying medical condition.. . . . . . 3
Physician certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Medical Marijuana Use Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Medical Marijuana Use Registry User Guide?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Physician certification in special circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Physician certification supply limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Orders for low-THC cannabis or medical cannabis under prior law.. . . . . . . . . . . . . . . . . . . 6
Physician certification review panel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Prohibited activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Federal Law Regarding “Medical Marijuana” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

HIPPA Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Federal laws regulating marijuana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Copyright © 2018 Florida Medical Association

 Florida Law Regarding “Medical Marijuana”

2 HOUR MEDICAL MARIJUANA COURSE

This course satisfies the requirements of section 381.986(3), Cannabis, the dried flowers of which contain 0.8 percent or less of
which requires that any physician seeking to become a “qualified tetrahydrocannabinol and more than 10 percent of cannabidiol
physician” eligible to certify patients to receive medical marijuana, weight for weight; the seeds thereof; the resin extracted from any
must first successfully complete a 2-hour course and subsequent part of such plant; or any compound, manufacture, salt, derivative,
examination offered by the Florida Medical Association or the mixture, or preparation of such plant or its seeds or resin that is
Florida Osteopathic Medical Association. dispensed only from a dispensing organization.”
Authorship of this course does not constitute an endorsement by “Medical cannabis” was defined as “all parts of any plant of the ge-
the FMA or FOMA of the concept that cannabis is an accepted treat- nus Cannabis, whether growing or not; the seeds thereof; the resin
ment for the qualifying medical conditions set forth in extracted from any part of the plant; and every compound, manufac-
s. 381.986(2), Florida Statutes. ture, sale, derivative mixture, or preparation of the plant or its seeds
or resin that is dispensed only from a dispensing organization for
medical use by an eligible patient.”
Florida Law Regarding “Medical Marijuana”
Notwithstanding the provisions in the Florida Statutes that made it
The law prior to 2014 unlawful to purchase and possess cannabis, the Act provided that
Prior to the 2014 legislative session, the possession and usage a “qualified patient and the qualified patient’s legal representative
of marijuana in any form was prohibited by Florida law. Section may purchase and possess for the patient’s medical use up to the
893.02(3) of the Florida Statutes used the Latin term “cannabis” in amount of low-THC cannabis or medical cannabis ordered for the
referring to marijuana and defined it as “all parts of any plant of the patient.”
genus Cannabis, whether growing or not; the seeds thereof; the
resin extracted from any part of the plant; and every compound, Under the Act, a physician licensed under chapter 458 (MDs) or
manufacture, salt, derivative, mixture, or preparation of the plant or chapter 459 (DOs) could order low-THC cannabis and medical
its seeds or resin.” cannabis for their patient’s use. There were a number of conditions,
restrictions and requirements imposed by the Act that a physician
Cannabis in all forms was a Schedule I controlled substance under had to be cognizant of. The actual language of the 2014 Act can be
Florida law1, meaning that it has a “high potential for abuse and has accessed by clicking here. The language of the 2016 Act can be
no currently accepted medical use in treatment in the United States accessed by clicking here.
and in its use under medical supervision does not meet accepted
safety standards.”2 The law after Amendment 2
Florida law provided that it was unlawful for any person to sell, man- Amendment 2, “Use of Marijuana for Debilitating Medical Condi-
ufacture, deliver, purchase, bring into this state, or be knowingly in tions,” was enshrined into the Florida Constitution on November 8,
actual or constructive possession of cannabis.3 2016 with 71% of Floridians voting in favor of the initiative. Because
the Amendment did not contain an effective date, pursuant to Arti-
cle XI, section 5.e. of the Florida Constitution, the Amendment did
The law between 2014 and 2016
not become effective until the first Tuesday after the first Monday in
The Florida Legislature passed SB 1030, the Compassionate Medical January (January 3, 2017).
Cannabis Act of 2014 during the 2014 legislative session to specifi-
cally allow for the medical usage of “low-THC cannabis.” In addition, The passage of Amendment 2 created a great deal of uncertainty
in 2016 the legislature passed HB 307, which allows for the usage of regarding the laws and regulations in effect for physicians that
“medical cannabis.” Unless otherwise noted, the two pieces of legisla- wished to certify their patients as eligible for medical marijuana,
tion will be referred to collectively as “the Act.” low THC cannabis, or medical cannabis. The Department of Health
responded to this uncertainty with the following guidance posted
Section 893.02(3) was amended to make it clear that the term on the website of the Office of Compassionate Use:
“cannabis” did not include “low-THC cannabis” as long as it is
“manufactured, possessed, sold, purchased, delivered, distributed, Amendment 2, and the expanded qualifying medical conditions,
or dispensed,” pursuant to Florida law. will become effective on January 3, 2017. Section 381.986 F.S.
remains in effect and the Florida Department of Health, physi-
The Act defined “low-THC cannabis” as a “plant of the genus cians, dispensing organizations, and patients remain bound by

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 1

 Florida Law Regarding “Medical Marijuana”

existing law and rule. Following Amendment 2’s effective date, Definition of pertinent terms.
the Department is directed to promulgate rules to implement The text of Amendment 2 contains a number of terms that were
Amendment 2 within 6 months, and to implement those regula- left undefined. SB 8-A provides definitions for the majority of these
tions within 9 months. terms. The definitions for terms of most importance to physicians
are set forth below:
Florida law permits qualified physicians to order low-THC
cannabis or medical cannabis for patients diagnosed with certain ØØ “Caregiver” means a resident of this state who has agreed to
conditions. There are two types of cannabis products that may be assist with a qualified patient’s medical use of marijuana, has
ordered by qualified physicians: a caregiver identification card, and meets the requirements of
subsection (6).
1. Low-THC Cannabis: Patients with cancer or a condition that
causes chronic seizures or muscle spasms may qualify to receive ØØ “Chronic nonmalignant pain” means pain that is caused by
low-THC cannabis. Low-THC cannabis has very low amounts of the a qualifying medical condition or that originates from a qualify-
psychoactive ingredient THC and does not usually produce the ing medical condition and persists beyond the usual course of
“high” commonly associated with cannabis. that qualifying medical condition.
2. Medical Cannabis: If a patient is suffering from a condition de- ØØ “Edibles” means commercially produced food items made with
termined to be terminal by two physicians, he or she may qualify marijuana oil, but no other form of marijuana, that are produced
for medical cannabis. This product can contain significant levels and dispensed by a medical marijuana treatment center.
of the psychoactive ingredient THC and may produce the “high” ØØ “Low-THC cannabis” (retains its definition under the 2014
commonly associated with cannabis. legislation) means a plant of the genus Cannabis, the dried flow-
ers of which contain 0.8 percent or less of tetrahydrocannabinol
The department recommends speaking to your health care pro-
and more than 10 percent of cannabidiol weight for weight; the
fessional to determine if low-THC or medical cannabis products
seeds thereof; the resin extracted from any part of such plant; or
are right for you or your loved one. List of Physicians Who Have
any compound, manufacture, salt, derivative, mixture, or prepa-
Completed the Required Training.
ration of such plant or its seeds or resin that is dispensed from a
Medical marijuana is available in Florida, however, medical marijuana treatment center.
remains illegal under federal law. ØØ “Marijuana” means all parts of any plant of the genus Canna-
Despite this guidance, many questions remained as to the validity bis, whether growing or not; the seeds thereof; the resin extract-
of the 2014 and 2016 legislation after the passage of Amendment ed from any part of the plant; and every compound, manufac-
2. In addition, there was a good deal of uncertainty as to whether ture, salt, derivative, mixture, or preparation of the plant or its
Amendment 2 made medical marijuana available as of January 3, seeds or resin, including low-THC cannabis, which are dispensed
2017, or whether implementing rules or legislation was needed.4 from a medical marijuana treatment center for medical use by a
qualified patient.
SB 8-A ØØ “Marijuana delivery device” means an object used, intend-
In response to the questions posed by the passage of Amendment 2, ed for use, or designed for use in preparing, storing, ingesting,
the Florida legislature responded with the passage of SB 8-A during a inhaling, or otherwise introducing marijuana into the human
special session in June of 2017. SB 8-A is a 78 page law that provides body, and which is dispensed from a medical marijuana treat-
detailed directions for the Department on a multitude of issues, ranging ment center for medical use by a qualified patient.
from who is eligible to receive medical marijuana under Amendment ØØ “Medical director” means a person who holds an active, unre-
2, to who is eligible to produce and dispense the substance, and in stricted license as an allopathic physician under chapter 458 or
what form. For physicians, SB 8-A (along with the regulations imple- osteopathic physician under chapter 459 and is in compliance
mented thereunder) provides the framework they must follow in order with the requirements of paragraph (3)(c) (i.e. has complied with
to properly certify patients as eligible to receive medical marijuana. the educational requirement).
Failure to comply with the requirements and proscriptions of SB 8-A can ØØ “Medical use” means the acquisition, possession, use,
result in administrative discipline, and even criminal penalties. Thus it is delivery, transfer, or administration of marijuana authorized by
imperative that every physician that wishes to make medical marijuana a physician certification. (The term is further defined by setting
available for his/her patients have a full understanding of the require- forth specifically what the term does not include – clarification
ments imposed by SB 8-A and its accompanying regulations. A detailed particularly of interest to the patient).
discussion of these requirements follow.

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 2

 Florida Law Regarding “Medical Marijuana”

ØØ “Physician certification” means a qualified physician’s The physicians must determine if the patient has a
authorization for a qualified patient to receive marijuana and a qualifying medical condition.
marijuana delivery device from a medical marijuana treatment
A qualified physician who is treating a patient that the physician
center.
believes might benefit from the use of medical marijuana, must deter-
ØØ “Qualified patient” means a resident of Florida who has been mine whether the patient has a “qualifying medical condition” before
added to the medical marijuana use registry by a qualified phy- the patient can be certified as eligible for medical marijuana use. A
sician to receive marijuana or a marijuana delivery device for a patient must be diagnosed with at least one of the following conditions
medical use and who has a qualified patient identification card. to qualify to receive marijuana or a marijuana delivery device:
ØØ “Qualified physician” means a person who holds an active,
i. Cancer
unrestricted license as an allopathic physician under chapter
458 or as an osteopathic physician under chapter 459 and is in ii. Epilepsy
compliance with the physician education requirements of sub- iii. Glaucoma
section (3) (i.e. has completed the educational requirements).
iv. Positive status for human immunodeficiency virus
ØØ “Smoking” means burning or igniting a substance and inhal-
v. Acquired immune deficiency syndrome
ing the smoke.
vi. Post-traumatic stress disorder
ØØ “Terminal condition” means a progressive disease or medical
or surgical condition that causes significant functional impair- vii. Amyotrophic lateral sclerosis
ment, is not considered by a treating physician to be reversible viii. Crohn’s disease
without the administration of life-sustaining procedures, and
ix. Parkinson’s disease
will result in death within one year after diagnosis if the condi-
tion runs its normal course. x. Multiple sclerosis
xi. Medical conditions of the same kind or class as or compara-
The process. ble to those enumerated above (i-x)
With the definitions providing the foundation, this course will now
focus on the requirements that SB 8-A imposes on physicians who xii. A terminal condition diagnosed by a physician other than the
wish to certify patients as eligible for medical marijuana. This course qualified physician issuing the physician certification
will fully discuss each statutory requirement as well as each regula- xiii. Chronic nonmalignant pain
tion adopted by the Department of Health or Medical Boards that The inclusion of chronic nonmalignant pain as a “qualifying medical
determine what a physician must or must not do, or may or may condition” does not mean that a patient with any type of chronic
not do when treating a patient who the physician believes would nonmalignant pain qualifies. By providing a definition of the term
benefit from the use of medical marijuana. “chronic nonmalignant pain,” it is clear that the legislature intended
to place a limit on this particular category. As noted above, “chronic
The physician must first complete this course. nonmalignant pain” is defined as “pain that is caused by a qualify-
To become a “qualified physician,” a Florida licensed allopathic or ing medical condition or that originates from a qualifying medical
osteopathic physician must first complete a two-hour course and condition and persists beyond the usual course of that qualifying
examination offered by the FMA or FOMA which encompass the medical condition.”
requirements of SB 8-A and any rules adopted thereunder.
Based on this definition, a patient with chronic nonmalignant pain
A physician who completed the 8-hour course required by the 2014 that is not caused by or that does not originate from a qualifying
and 2016 legislation5 is deemed to be in compliance with the new medical condition would not qualify to receive medical marijuana.
educational requirement, effective on June 23, 2017, until 90 days
after this course became available. However, the physician must have The statute, however, does not provide further guidance, and none
completed the 8-hour course prior to June 23, 2017. To be clear, if you has been provided by the Board or the Department. It does appear that
took the 8-hour course on or after June 23, 2017, then you have to a patient with chronic nonmalignant pain that is caused by or originates
take the new 2-hour course before you can be approved as a quali- from a medical condition of the same kind or class as the conditions
fied physician. If you took the 8-hour course prior to June 23, 2017, enumerated in i-x above would qualify to receive medical marijuana.
then you will be deemed a qualified physician until 90 days from It also appears that a patient with chronic nonmalignant pain that is
September 28, 2017, at which point you will no longer be a qualified caused by or originates from a qualifying medical condition would qual-
physician unless and until you take the new 2-hour course. ify even if the original qualifying medical condition no longer existed.

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 3

 Florida Law Regarding “Medical Marijuana”

Physician certification ØØ You must obtain the voluntary and informed written consent of
Once you have met the conditions to become a qualified physician the patient for medical use of marijuana EACH TIME you issue
and have determined that your patient has a qualifying medical a certification for the patient. You must document this consent in
condition, there are an extensive list of requirements that you must the patient’s medical records.
meet before you can certify a patient as eligible to receive medical ØØ You must have the patient (or the patient’s parent or legal guard-
marijuana. ian, if the patient is a minor) sign the informed consent acknowl-
edging that you sufficiently explained the content. Thus, prior to
ØØ You must personally conduct a physical examination while having the patient sign the form, you must sufficiently explain
physically present in the same room as the patient and conduct each item on the form to the patient.
a full assessment of the patient’s medical history.
ØØ You must use a standardized informed consent form adopted in rule
ØØ You must diagnose the patient with at least one qualifying by the Board of Medicine or the Board of Osteopathic Medicine.
medical condition.6
ØØ You must determine that the medical use of marijuana would There are several informed consent forms
likely outweigh the potential health risks for the patient, and
such determination must be documented in the patient’s available on the internet. While these home-
medical record. If the patient is less than 18 years old, a second made forms may be functionally sufficient, SB
physician must concur with your determination, and you must
document this in the patient’s medical record.
8-A is clear that you must use the form adopted
ØØ You must determine whether the patient is pregnant and docu- by the Boards. The Board of Medicine informed
ment such in the patient’s medical record. consent form can be found here. The Board of
Osteopathic Medicine form can be found here.
You are prohibited by law from certifying a
pregnant patient for medical marijuana, with the
Medical Marijuana Use Registry
exception that you may certify a pregnant patient
The Medical Marijuana Use Registry is a secure, electronic, online
for low-THC cannabis. database for the registration of ordering physicians and qualified
patients. It is accessible to ordering physicians, law enforcement,
ØØ You must check the patient’s controlled drug prescription history dispensing organization staff, and Office of Medical Marijuana Use staff.
in the prescription drug monitoring program database (PDMP). You can register with the Medical Marijuana Use Registry online
here.
ØØ You must review the medical marijuana use registry and confirm
that the patient does not have an active physician certification
from another qualified physician.
ØØ You must register as the issuer of the physician certification
for the named qualified patient on the medical marijuana use
registry in an electronic manner determined by the department
and must:
»» Enter into the registry the contents of the physician certifica-
tion, including the patient’s qualifying condition and the dos-
age (which cannot exceed the daily dose amount determined
by the department7), the amount and forms of marijuana
authorized for the patient, and any types of marijuana delivery
devices needed by the patient;
»» Update the registry within 7 days after any change is made to
the original physician certification to reflect such change; and
»» Deactivate the registration of the qualified patient and the
patient’s caregiver when the physician no longer recommends
the medical use of marijuana for the patient.

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 4

 FL DOH Compassionate Use Registry

Click here for the Registry User Guide for Ordering Physicians.

What’s in this user guide?

This user guide explains the basics of the Medical Marijuana Use
Registry:
ØØ Self-registration
ØØ Logging in and managing your registry account
ØØ Searching for patients and caregivers
ØØ Adding or editing patients and caregivers
ØØ What to expect when supplying certifications and orders

STRY
MEDICAL MARIJUANA USE REGI
PHYSICIAN USER’S GUIDE

E?
WHA T’S IN THIS USER GUID

ry:
of the Medical Marijuana Use Regist
This user guide explains the basics

• SELF-REGISTRATION
REGISTRY ACCOUNT
• LOGGING IN AND MANAGING YOUR
CAREGIVERS
• SEARCHING FOR PATIENTS AND
AND CAREGIVERS
• ADDING OR EDITING PATIENTS S
YING CERTIFICATIONS AND ORDER
• WHAT TO EXPECT WHEN SUPPL

SELF- REGI STRA TION

“Why is this important?”

tant because the Registry is where
e your Registry account is impor
Knowing how to log in and manag Patien ts may obtain Low-THC Cannabis,
ct others on how their
Qualified Ordering Physicians instru s must be entered into the Medic
al
ana Delivery Devices. All Order
Medical Marijuana or Medical Mariju and dispensed by an approved Medic
al
a Qualified Order ing Physician,
Marijuana Use Registry by
C).
Marijuana Treatment Center (MMT

“How do I get started?”

the Registry. You will need to
self-register for an account to access
Qualified Ordering Physicians may tials have been verified you
your identi ty using your medic al credentials. Once your creden your
initially verify update your password to one of
e your initial login creden tials via email then be requested
will receiv
Certifications & Order s.
choosing before you can record
://[Link]/) and
visit the Medic al Marijuana Use Registry (https
To self-register, please the Register tab title in the
menu bar link. You will be taken to the login page. Next, click
click the LOGIN
Login panel. (See follow ing page)

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 5

 Florida Law Regarding “Medical Marijuana”

Physician certification in special circumstances provide relief to the qualified patient

If you have determined that your patient has a qualifying medical ØØ A description of how the patient will benefit from an increased
condition because they have a condition “of the same kind or class” amount
as one of the enumerated conditions in SB 8-A8, there are additional ØØ The minimum daily dose amount of marijuana that would be
steps you must take. You must submit the following documentation sufficient for the treatment of the patient’s medical condition
to the applicable board (the Board of Medicine or Board of Osteo-
pathic Medicine): In addition, you must provide the patient’s medical records to the
department upon request.
ØØ Documentation supporting your opinion that the medical
condition is of the same kind or class as one of the enumerated The department has 14 days after receipt of the request to approve
conditions. or disapprove the requested exception. If the department fails to act
within 14 days, the request is deemed approved.
ØØ Documentation that establishes the efficacy of marijuana as
treatment for the condition.9 ØØ Physician recertification
ØØ Documentation supporting your opinion that the benefits of You must evaluate an existing patient at least once every 30 weeks
medical use of marijuana would likely outweigh the potential before issuing a new certification, and must do the following:
health risks for the patient.
ØØ Determine if the patient still meets the requirements to be issued
ØØ Any other documentation as required by board rule. To date, no a physician certification set forth on page 4 of this document.
rules have been adopted requiring additional information.
ØØ Identify and document in the patient’s medical record whether
As contemplated by SB 8-A, the boards will send the documenta- the patient experienced either an adverse drug interaction with
tion to the department. The department is required to submit the any prescription or nonprescription medication, or a reduction in
documentation to the Coalition for Medical Marijuana Research and the use of, or dependence on, other types of controlled substanc-
Education, an entity created in SB 8-A to “conduct rigorous scien- es, related to the medical use of marijuana. You must submit a
tific research, provide education, disseminate research, and guide report with these findings to the department.
policy for the adoption of a statewide policy on ordering and dosing
practices for the medical use of marijuana.” As to the first requirement, it is unclear whether you have to do
everything required in section c., for example, conduct a physical
There have been no guidelines developed by the department or the examination while physically present in the same room as the pa-
boards as to the type or required detail for the documentation re- tient, or just make sure that nothing has changed that would render
quired above. For the time being, you are left to your best judgement. the patient ineligible for medical marijuana (such as becoming
pregnant). No guidance has been provided by the department. In
Physician certification supply limits an abundance of caution, it would be prudent to make sure you
You may not certify a patient for more than a 210 day supply of comply with each provision in section c.10
medical marijuana (three 70-day supply limits). The 70-day supply
is calculated by using the daily dose amount quantified in rule by Orders for low-THC cannabis or medical cannabis
the department for each allowable form of marijuana dispensed by under prior law.
a medical marijuana treatment center. The department has not yet SB 8-A provides that “an active order for low-THC cannabis or med-
promulgated the daily dose rule. It is up to you to decide if you wish ical cannabis issued pursuant to former s. 381.986 . . . and regis-
to certify a patient without the guidance provided by the daily dose tered with the compassionate use registry before [June 23, 2017],
rule. It is unknown whether the boards will impose discipline on is deemed a physician certification, and all patients possessing such
physicians who certify patients for a daily dose amount that exceeds orders are deemed qualified patients until the department begins
the amount that is eventually allowed by department rule. issuing medical marijuana use registry identification cards.
You may request an exception to the daily dose limit (once it is adopt- If you provided a patient with an order for low-THC cannabis or
ed) by electronically submitting a request on a yet-to-be created form medical cannabis prior to June 23, 2017, it appears that the patient
adopted by the department. The form will most likely prompt you to can continue to receive their medication, as long as the order is still
input the required information, which must include the following: an active, valid order and was entered into the medical marijuana
use registry before July 1, 2017.11
ØØ The patient’s qualifying medical condition
ØØ The dosage and route of administration that was insufficient to However, it is unclear whether active orders for low-THC cannabis

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 6

 Federal Law Regarding “Medical Marijuana”

or medical cannabis issued prior to June 23, 2017 are still valid disciplinary action by the Board of Medicine or
orders as the department appears to have begun issuing Medical
Marijuana Use Registry identification cards.12 Further clouding the the Board of Osteopathic Medicine.
issue, no definition of “active, valid order” has been provided. The
department has not responded to requests for guidance on this Physicians who are involved in any activity
issue. This will remain an area of confusion until the department regarding the medical use of marijuana, as
provides clarity.
provided in section 381.986, Florida Statutes,
Physician certification review panel are subject to both the Patient Self-Referral Act
The Board of Medicine and the Board of Osteopathic Medicine of 199213 (Florida’s “Stark law”), and the anti-
are required to jointly create a physician certification review panel kickback/patient brokering provisions of Florida
tasked with reviewing all physician certifications submitted to the
medical marijuana use registry. The panel is required to track and law14. Any physician who violates these laws are
report the number of physician certifications and the qualifying subject to both administrative discipline and
medical conditions, dosage, supply amount, and form of marijuana criminal penalties.
certified. Data is to be reported both by individual qualified phy-
sician, and in the aggregate, and shall be submitted in an annual
report to the Governor, the President of the Senate, and the Speaker
A qualified physician may not be employed by, or
of the House of Representatives, beginning January 1, 2018. have any direct or indirect economic interest in, a
The joint panel has yet to be created. Given the data reporting
medical marijuana treatment center or marijuana
requirements, it appears that the public will have access to infor- testing laboratory 16.
mation on the number of certifications issued by every individual
qualified physician, as well as the qualifying medical condition for A physician who certifies a patient for medical
each certification, and dosage, supply amount, and form of marijua- marijuana in a manner out of compliance
na certified. In addition, the department is required to publish a list
on its website of all qualified physicians. with the requirements of s. 381.986 and
the rules adopted thereunder is subject to
Prohibited activities administrative discipline.
SB 8-A contains a number of provisions that contain criminal and/or
administrative penalties for prohibited activities.
Federal Law Regarding “Medical Marijuana”
A qualified physician commits a misdemeanor of
HIPPA Considerations
the first degree if the qualified physician issues A physicians who chooses to certify a patient for medical marijuana
a physician certification for the medical use of and adds the patient to the medical marijuana use registry estab-
marijuana for a patient without a reasonable belief lished by SB 8-A will, as with the provision of any other medical ser-
vice, be required to comply with both federal HIPAA requirements
that the patient is suffering from a qualifying and state privacy statutes. The Department of Health’s former Office
medical condition. of Compassionate Use provided the following information for physi-
cians ordering low-THC cannabis for qualified patients after January
A qualified physician who issues a physician 1, 2015. This information provided physicians with assistance in
how to properly use the patient registry so that a patient’s personal-
certification for marijuana or a marijuana delivery ly identifiable health information is properly protected.
device and receives compensation from a medical
Similar guidance can be found in the User’s Guide for Physician
marijuana treatment center related to the Users (discussed above) for physicians who wish to certify patients
issuance of a physician certification for marijuana pursuant to SB 8-A.
or a marijuana delivery device is subject to
Federal laws regulating marijuana

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 7

 Federal Law Regarding “Medical Marijuana”

With the conditions noted above, Amendment 2 and SB 8-A reasonable basis to believe that compliance with state law is
specifically allows allopathic and osteopathic physicians to certify being invoked as a pretext for the production or distribution of
patients for medical marijuana. While Florida physicians will not marijuana for purposes not authorized by state law; or
face criminal charges under Florida law for certifying patients for ØØ Precluding an investigation or prosecution, even when there
medical marijuana, the legality of this conduct under federal law is is clear and unambiguous compliance with existing state law,
far less clear. in particular circumstances where investigation or prosecution
otherwise serves important federal interests.
Position of the United States Department of Justice
In other words, according to the Attorney General’s office, federal
On October 19, 2009, United States Attorney General Eric Holder prosecutors should focus on marijuana cases that involve firearms,
announced formal guidelines for federal prosecutors to use in states violence, minors, money laundering, diversion, other controlled
that have authorized the use of marijuana for medical purposes. In a substances, and ties to other criminal enterprises. Prosecutors should
Memorandum for Selected United State Attorneys on Investigations ignore small scale violations of federal law that are fully in compliance
and Prosecutions in States Authorizing the Medical Use of Marijuana, with state law. Prosecutors have the discretion, however, to prosecute
Deputy Attorney General David W. Ogden stated that even when actions taken are fully in compliance with state law. The
The prosecution of significant traffickers of illegal drugs, includ- important thing to remember is that prescribing and possessing
ing marijuana, and the disruption of illegal drug manufacturing cannabis, even low-THC cannabis, is still illegal under federal law.
and trafficking networks continues to be a core priority in the The Attorney General’s Office reiterated this position in a June 29,
Department’s efforts against narcotics and dangerous drugs, and 2011 memorandum titled Guidance Regarding the Ogden Memo in
Departments investigative and prosecutorial resources should be Jurisdictions Seeking to Authorize Marijuana for Medical Use. Dep-
directed towards these objectives. As a general matter, pursuit of uty Attorney General James M. Cole stated that the “Ogden Memo
these priorities should not focus federal resources in your States on reiterated to you that prosecution of significant traffickers of illegal
individuals whose actions are in clear and unambiguous com- drugs, including marijuana, remains a core priority, but advised that
pliance with existing state laws providing for the medical use of it is likely not an efficient use of federal resources to focus enforce-
marijuana. For example, prosecution of individuals with cancer or ment efforts on individuals with cancer or other serious illnesses
other serious illnesses who use marijuana as part of a recommend- who use marijuana as part of a recommended treatment regimen
ed treatment regimen consistent with applicable state law, or those consistent with applicable state law, or their caregivers.”
caregivers in clear and unambiguous compliance with existing
state law who provide such individuals with marijuana, is unlikely Mr. Cole, however, made it clear that large scale, privately owned
to be an efficient use of limited federal resources. industrial marijuana cultivation centers were not safe from federal
prosecution, regardless of whether they were in compliance with
This memorandum serves as a notice to those physicians that state law. “Consistent with resource constraints and the discretion
participate in state sanctioned medical marijuana programs that the you may exercise in your district, such persons are subject to federal
federal government is probably not going to prosecute them, even enforcement action, including potential prosecution.”
though they are violating federal law. As long as such physicians are
in compliance with existing state laws, and not engaged in actions Mr. Cole provided further guidance in an August 29, 2013 memo-
that may indicate illegal drug trafficking activity of potential federal randum in which he backs away from a hard line against large scale,
interest, the Attorney General’s office does not view their prosecu- for profit cultivation centers. Mr. Cole first lists what the Attorney
tion as an efficient use of federal resources. Mr. Ogden’s memoran- General’s Office considers to be its enforcement priorities in regards
dum, however, makes it clear that the Attorney General’s Office is to the use of marijuana for medical purposes:
specifically NOT doing the following:
ØØ Preventing the distribution of marijuana to minors;
ØØ Legalizing marijuana or providing a legal defense to a violation ØØ Preventing revenue from the sale of marijuana from going to
of federal law; criminal enterprises, gangs and cartels;
ØØ Creating any privileges, benefits, or rights, substantive or pro- ØØ Preventing the diversion of marijuana from states where it is
cedural, enforceable by any individual, party or witness in any legal under state law in some form to other states;
administrative, civil, or criminal matter;
ØØ Preventing state-authorized marijuana activity from being used
ØØ Creating a legal defense to a violation of the Controlled Sub- as a cover or pretext for the trafficking of other illegal drugs or
stances Act; other illegal activity;
ØØ Precluding an investigation or prosecution where there is a ØØ Preventing violence and the use of firearms in the cultivation

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 Federal Law Regarding “Medical Marijuana”

and distribution of marijuana; Rohrabacher-Farr

ØØ Preventing drugged driving and the exacerbation of other adverse The Rohrabacher-Farr amendment, first passed in 2014, prohibits
public health consequences associated with marijuana use; the use of federal funds in preventing states “from implementing
their own State laws that authorize the use, distribution, possession
ØØ Preventing the growing of marijuana on public lands and the
or cultivation of medical marijuana.” The amendment does not
attendant public safety and environmental dangers posed by
change the legal status of cannabis, however, and must be renewed
marijuana production on public lands; and
each fiscal year in order to remain in effect.
ØØ Preventing marijuana possession or use on federal property.
Does this limitation serve to prohibit the Department of Justice from
Mr. Cole notes that his previous memorandum “drew a distinction
expending federal funds to prosecute physicians who allegedly aid
between the seriously ill and their caregivers, on the one hand, and
and abet their patients in obtaining a controlled substance that is
large-scale, for profit commercial enterprises, on the other, and ad-
illegal to possess (for example, certifying the patient as eligible to
vised that the latter continued to be appropriate targets for federal
receive medical marijuana)?
enforcement and prosecution. In this memorandum, Mr. Cole backs
off the hard line approach taken in the 2011 memorandum. Here In the case of United States v. McIntosh18, the 9th Circuit Court of
Mr. Cole stresses the importance of strong and effective state regula- Appeals held that, “at a minimum [the Rohrabacher-Farr amend-
tory and enforcement systems in states that have authorized mari- ment] prohibits DOJ from spending funds from relevant appro-
juana related conduct, and notes that such state controls may allay priations acts for the prosecution of individuals who engaged in
the threat that an operation’s size may pose to federal enforcement conduct permitted by the State Medical Marijuana Laws and who
issues. With these strong state controls in place, Mr. Cole states that fully complied with such laws.” The court further held that “Individu-
“in exercising prosecutorial discretion, prosecutors should not con- als who do not strictly comply with all state-law conditions regarding
sider the size or commercial nature of a marijuana operation alone the use, distribution, possession, and cultivation of medical marijua-
as a proxy for assessing whether marijuana trafficking implicates the na have engaged in conduct that is unauthorized, and prosecuting
Department’s enforcement priorities.” “Rather, prosecutors should such individuals does not violate [Rohrabacher-Farr].
continue to review marijuana cases on a case-by-case basis and
weigh all available information and evidence, including, but not Physicians who certify patients for medical marijuana in strict
limited to, whether the operation is demonstrably in compliance compliance with SB 8-A appear to be immune from federal prosecu-
with a strong and effective state regulatory system.” tion for violating the Controlled Substance Act (CSA), at least in the
9th Circuit, for now. The court however, in a footnote, provided this
While the policy of the Attorney General’s office under the Obama warning:
administration was to ignore offenses committed by those who
prescribe and use medical marijuana in compliance with state law, To be clear, section 542 [Rohrabacher-Farr] does not provide
it is as of yet unclear how the Trump administration will handle this immunity from prosecution for federal marijuana offenses. The
issue. As a presidential candidate, Donald Trump seemed to be in CSA prohibits the manufacture, distribution, and possession of
support of state-level medical marijuana regulations, including the marijuana. Anyone in any state who possesses, distributes, or
notion that states should be free to adopt policies as they saw fit.15 manufactures marijuana for medical or recreational purposes (or
President Trump’s Attorney General, Jeff Sessions, however, in a May attempts or conspires to do so) is committing a federal crime. The
1, 2017 letter to Congress, stated his opposition to federal medical federal government can prosecute such offenses for up to five
marijuana protections that were enacted by Congress in what is years after they occur. Congress currently restricts the government
known as the Rohrabacher-Farr amendment.16 In the letter, Mr. from spending certain funds to prosecute certain individuals. But
Sessions stated that “I believe it would be unwise for Congress to Congress could restore funding tomorrow, a year from now, or
restrict the discretion of the Department to fund particular prose- four years from now, and the government could then prosecute
cutions, particularly in the midst of an historic drug epidemic and individuals who committed offenses while the government
potentially long-term uptick in violent crime. The Department must lacked funding. Moreover, a new president will be elected soon,
be in a position to use all laws available to combat the transnational and a new administration could shift enforcement priorities to
drug organizations and dangerous drug traffickers who threaten place greater emphasis on prosecuting marijuana offenses.
American lives.” While it does not appear that the Justice Depart-
ment is set to investigate, arrest or prosecute physicians who are in- A prescient warning indeed. Attorney General Jeff Sessions, as
volved in providing medical marijuana to their patients, physicians noted above, asked that the Rohrabacher-Farr amendment (now
known as the Rohrabacher-Blumenauer amendment), set to expire
should keep informed of any changes that might be forthcoming.
on September 30, 2017, not be renewed. The amendment’s future
was thrown into doubt when the House Rules Committee blocked

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 Federal Law Regarding “Medical Marijuana”

the amendment – along with several other cannabis amendments ment will not go after physicians who engage in this conduct in full
–from receiving a floor vote. But an emergency aid package for vic- compliance with the Act, the question still remains, is it technically
tims of Hurricane Harvey also extended the current federal budget, illegal under federal law for physicians to certify their patients as
thus keeping the Rohrabacher-Blumenauer amendment in place eligible for medical marijuana.
until December 8, 2017.
The only real guidance from the federal courts come from a 2002
Physicians should pay attention to future developments regarding opinion from the 9th Circuit Court of Appeals22. In this case, the
the fate of this amendment. 9th Circuit upheld a permanent injunction enjoining the govern-
ment from revoking a physician’s license to prescribe controlled
The Drug Enforcement Agency’s Position on Marijuana substances based solely on the physician’s professional recommen-
The very first paragraph of the The DEA Position on Marijuana19 dation of the use of medical marijuana, and also from conducting
states that: an investigation of a physician based on the same impermissible
motive. The court recognized that historically, “physician speech is
Marijuana is properly categorized under Schedule I of the entitled to First amendment protection because of the significance
Controlled Substances Act (CSA), 21 U.S.C. § 801, et. seq. The of the doctor-patient relationship.” The court viewed the permanent
clear weight of the currently available evidence supports this injunction against the federal government to mean “only that the
classification, including evidence that smoked marijuana has government may not initiate an investigation of a physician solely
a high potential for abuse, has no accepted medicinal value on the basis of a recommendation of marijuana within a bona fide
in treatment in the United States, and evidence that there is doctor-physician relationship, unless the government in good faith
a general lack of accepted safety for its use even under medi- believes it has substantial evidence of criminal conduct.”
cal supervision.
The Court found that the physician’s recommendation itself was not
To say that the DEA is not a proponent of medical marijuana would illegal conduct, but noted that “if, in making the recommendation,
be an understatement. Their ire, however, is clearly focused on the physician intends for the patient to use it as the means for ob-
smoked marijuana20. While the DEA makes it clear that they intend taining marijuana, as a prescription is used as a means for a patient
to adhere to the formal guidelines for federal prosecutors issued by to obtain a controlled substance, then a physician would be guilty of
the United States Attorney General’s Office, they are quick to point aiding and abetting the violation of federal law.”
out that “[w]hile some people have interpreted these guidelines to
mean that the federal government has relaxed its policy on ‘medi- Both California’s Compassionate Use Act and Florida’s SB 8-A require
cal’ marijuana, that is not the case. Investigations and prosecutions the involvement of a physician before a patient is able to legally
of violations of state and federal law will continue.” (under state law) procure cannabis. The 9th Circuit opinion affords
California physicians a measure of protection from federal prosecu-
While it appears that physicians who recommend marijuana for tion and investigation because the California statute only requires a
their patient’s use under state laws are not currently being targeted “recommendation” from a physician, not a prescription. Florida’s Act
by the DEA, an article in the Boston Globe indicates that the DEA is requires a physician “certification” in order for the patient to obtain
putting pressure on physicians involved with medical marijuana medical marijuana. Is a certification more akin to a “recommenda-
dispensaries21. According to the article, the DEA has pressured tion” or a “prescription”?
physicians in Massachusetts to either end their relationship with the
marijuana dispensary, or give up their federal license to prescribe In California, the process, in simplistic terms, is that the physician
controlled substances. It is unknown at this point what actions the tells the patient that in his/her opinion, marijuana would be bene-
DEA will take against those physicians who continue to maintain ties ficial in treating the patient’s medical condition. This recommenda-
to marijuana dispensaries without giving up their DEA license. tion is noted in the patient’s medical records. The patient obtains a
copy of the medical records and on the basis of the recommenda-
tion contained therein, is able to procure medical marijuana. The
Federal Case Law physician does not write a prescription, order, or do anything else of
Florida’s Compassionate Medical Cannabis Act of 2014 specifically an active nature to assist the patient.
provided that a physician may order low-THC cannabis for use by
their patient. SB 8-A used the term “certify” instead of order, and Contrast this with the Florida system. The physician has to make a
established a structure in which the physician is central to, and determination that the patient has a qualified medical condition,
extensively involved in, the process of making medical marijuana and that the medical use of marijuana would likely outweigh the
available to the patient. While the memoranda from the United potential health risks. But the physician must do more than simply
States Attorney General’s Office indicates that the federal govern- note this in the patient’s medical records. The physician must

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 10

 Federal Law Regarding “Medical Marijuana”

register with the medical marijuana use registry as the issuer of the 4. Section (d)(1) of Amendment 2 requires the Department to pro-
physician certification. This certification is a requirement that must mulgate a number of regulations no later than 6 months after the
effective date of the Amendment.
be met before the patient can receive medical marijuana. Similar to
a prescription, the certification must contain the daily dose amount, 5. Former s. 381.986(4), Florida Statutes (2016)
forms of marijuana authorized for the patient, and the types of 6. If you are certifying the patient because of a “terminal condition,”
delivery devices needed. The physician is responsible for deactivat- the diagnosis of the terminal condition must be made by a different
ing the registration when the physician no longer recommends the physician.
medical use of marijuana. 7. The department has not yet issued any guidelines on the permissible
According to the DEA, a prescription is “an order for medication daily dose.
which is dispensed to or for an ultimate user23.” Florida’s certifica- 8. See SB 8-A, p.10, lines 270-271.
tion process is strikingly similar to a written prescription, and far less 9. Neither the boards nor the department have adopted any rules or
involved than simply giving a recommendation. Given this defini- regulations that would provide guidance as to what type of documen-
tion and the lack of case law following Conant, the 9th Circuit case tation would be sufficient to meet this condition.
does not provide Florida physicians with any measure of certainty 10. Section 381.986(4)(a), Florida Statutes (2017).
that SB 8-A provides them the same protection from prosecution
11. It is unclear whether the Medical Marijuana Use Registry existed prior
afforded California physicians. Regardless, since Florida is not in the
to July 1, 2017. Please consult the department for information on
9th Circuit anyway, it is an open question as to whether the 11th
whether any order for low-THC cannabis or medical cannabis issued
Circuit (of which Florida is in) would interpret the law the same way prior to June 23, 2017 is still considered valid.
were they to be presented with the same question.
12. [Link]
fice-of-medical-marijuana-use/registry-id-cards/[Link]
Conclusion
The possession of medical marijuana violates federal law. Writing a 13. Section 456.053, Florida Statutes (2017)
prescription for medical marijuana violates federal law. Certifying 14. Section 456.054, Florida Statutes (2017); Section 817.505, Florida
a patient for medical marijuana arguably violates federal law. It Statutes (2017)
appears at the present time, however, that the federal government 15. [Link]
will not be investigating or prosecuting physicians who certify phy- gavin-newsom/true-campaign-trump-said-states-should-decide-
sicians who certify patients for medical marijuana. Physicians who lega/
serve as a medical director for a medical marijuana treatment center 16. Medical marijuana treatment center is defined in the Florida Consti-
will probably not be investigated or prosecuted, but may receive tution as “an entity that acquires, cultivates, possesses, processes
some unwelcome attention from the DEA. (including development of related products such as food, tinctures,
aerosols, oils, or ointments), transfers, transports, sells, distributes,
Given the tension between federal law and state laws on the subject dispenses, or administers marijuana, products containing marijua-
of medical marijuana, this is a dynamic area subject to constant na, related supplies, or educational materials to qualifying patients
change. The current US Attorney General would very much like to or their caregivers and is registered by the Department. It does not
enforce the current federal laws that provide that marijuana, even include a physician’s office or other place where patients are evaluat-
medical marijuana, is illegal to prescribe, possess or sell. While ed for marijuana use.
efforts have been made to reclassify marijuana as a schedule II 17. [Link]
drug, until this happens, each physician will have to decide on their gress-To-Undo-Medical-Marijuana-Protections
own whether they are comfortable with certifying patients under 18. [Link]
the provisions of SB 8-A. Both certifying physicians and physicians 16/[Link]
who serve as the medical director of a medical marijuana treatment
19. April 2013. The full text of the document can be accessed here.
center should consult with their own private legal counsel to deter-
mine any potential criminal or civil liability for engaging in activity 20. On page 2 of their Position on Marijuana, the DEA states that they
permissible under Florida’s SB 8-A. and the “federal government are not alone in viewing smoked mari-
juana as having no documented medical value. Voices in the medical
community likewise do not accept smoked marijuana as medicine.”
Footnotes 21. DEA Targets Doctors Linked to Medical Marijuana, June 6, 2014.
1. Section 893.03(1)(c)7., Florida Statutes (2013) 22. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
2. Section 893.03(1), Florida Statutes (2013) 23. [Link]
3. Sections 893.13 and 893.15, Florida Statutes (2013)

Florida Medical Association MEDICAL MARIJUANA COURSE | pg 11

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