Yesterday the Florida Department of Health issued the latest version of the draft Rules that will implement the State's Charlotte's Web medical marijuana law. The two previous versions were issued as discussion drafts. The release yesterday was an official Notice of Proposed Rule. That means that further actions on the Rule will be under the State's administrative procedures law, with set deadlines. This, in turn, means that the State is close to finalize implementing the Rules. The Rule however continues to contain significant problems, both for potential medical marijuana licensees as well as for patients. The summary below highlights the outstanding issues.
- It is clear that the Department wants to get the Rule finalized and the license process started. This draft came out quickly. It is full of typos and mistakes. It is not a draft but a "Notice of Proposed Rule." That means it is now under the Florida Administrative Procedures Act with established deadlines.
- As in the last draft, DOH now requires that every license have at least a 25% ownership stake by one of the certified nurseries.
- In the definitions section, DOH defines derivative products -- such as oils, vapors, extracts and capsules. It also defines edible food products. But nowhere does the rule address how those products can be made. In fact, in another part of the Rule, DOH says "Dispersing Organizations shall not produce or provide low-THC cannabis that is part of, mixed with, or added to an edible food product." Why have a definition for products that have no way to be produced?
- The Rule makes clear that licenses can have only one location. The Rule defines a Dispensing Organization Facility as one with "one or multiple structures within the same contiguous property…."
- The latest draft allows for transportation systems. Up to a 90 day supply of medical marijuana can be delivered to patients. Since licensees are limited to one location, each must have extensive investments in a delivery fleet. This also raises issues of driver safety as they will be carrying large amounts of cash.
- The Rule continues to define a permanent resident as a full time resident. The law restricts sales to permanent residents. Thus, the Rule prevents sales to long term, but not full time residents, such as snowbirds.
- Each nursery is restricted to applying for only one license.
- Each applicant must still submit a large amount of material as part of the application including detailed floor plans of all facilities, detailed marketing plans, and documentation that all principals have completed Level-2 background screenings.
- The DOH will review all the material, and certify complete applications. If there is more than one certified application in a region, DOH will conduct a lottery.
- After the lottery winners have been awarded, they have 10 days to pay a $150,000 fee and post a $5 million performance bond.
- After the Rule is finalized, applicants will have up to 15 days to submit their completed applications.
- Licenses are good for two years, then must be renewed.
- Facilities cannot be within 1000 feet of existing day care centers, schools, churches or public parks. In reality, these facilities will be located far out in rural communities, so the restrictions are irrelevant.
- In the last draft, DOH required that the medical marijuana be organic. At the Workshop, it was pointed out that produce labeled "organic" can be grown with some forms of fertilizer and pesticides. This version requires that residues of pesticides and other foreign substances be reported to DOH. The organic requirement is gone.
- Thirty days before cultivation starts, DOH must be notified and will inspect the facilities. At that time there cannot be any seeds, plants or plant tissues in the facility. Again DOH does not address how the plants get into the facility to start cultivation.
- Successful licensees must start cultivation within 75 days of the award or must start distribution within 150 days.
The bottom line is that the Rule is still problematic with the biggest issues revolving the lottery, the transportation plan, the definition of a permanent resident, how the seeds will get into the State, and only one location per license.