Cannabusiness in Florida

Market snapshot

Trends and prospects

How would you describe the current state of the cannabis industry in your jurisdiction, including areas of growth, market prospects and trends, and M&A activity?

Florida’s medical cannabis industry experienced robust growth in 2018 and appears poised to continue that growth for the foreseeable future. The state’s patient registration count quickly grew from 65,310 at the start of 2018 to approximately 209,000 at the end of the year. The number of retail locations grew at a similar pace, from 25 at the start of 2018 to 83 at the end of the year. Industry analysts project that the state’s medical marijuana market may grow to as much as $1.6 billion and support 400,000 patients by 2020.

Legal framework

Legislation

What primary and secondary legislation governs the use, cultivation and retail of cannabis in your jurisdiction?

With the exception of medical cannabis, cannabis is an illegal Schedule I controlled substance under the Florida Controlled Substances Act and its possession, use, cultivation, and distribution is illegal in Florida (Florida Statute 893.03(1)(c)(7)). However, Florida has enacted a robust medical cannabis regime.

Florida’s medical cannabis regime is grounded in a voter-approved amendment to Florida’s Constitution (the Cannabis Amendment) (Article X, Section 29 of the Florida Constitution). The Cannabis Amendment authorizes “qualified physicians” to prescribe cannabis to patients with certain “debilitating medical conditions,” who can then purchase cannabis from licensed medical marijuana treatment centers, which are vertically-integrated companies that cultivate, process, and dispense cannabis.

The Cannabis Amendment is implemented through Florida Statute 381.986, which sets out detailed requirements for:

• patients seeking to obtain a physician certification to use cannabis;
• physicians seeking to issue such certifications; and
• marijuana treatment centers seeking to supply cannabis to qualified patients.

The statute also delegates significant rulemaking authority to the Florida Department of Health; however, litigation attacking Florida Statute 381.986 as impermissibly narrow under the Cannabis Amendment has slowed the department’s rulemaking. The most relevant regulations to have been enacted are found in Chapters 64-4 and 64eR17 of the Florida Administrative Code.

Florida’s medical marijuana statute has several specific provisions related to “low-tetrahydrocannabinol (THC) cannabis”—defined as any cannabis containing less than 0.8% THC by weight—in contrast to the recently-passed federal Farm Bill 2018, which decriminalizes “hemp,” defined as cannabis containing less than 0.3% THC by weight. Neither the U.S. Department of Agriculture nor the Florida Department of Agriculture and Consumer Services have promulgated regulations regarding the production of hemp, but industry participants should be aware that some products with lower THC content will be legal under both state and federal law, while any low-THC cannabis between 0.3% and 0.8% THC by weight will be legal under Florida law, but not federal law.

The original article, "Cannabusiness in Florida," first appeared on Lexology Navigator on February 4, 2019.