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Cases to Watch: Lawsuit Challenges Florida Restriction on Smokable Marijuana

Posted by on Wednesday, December 20, 2017 in News, Updates.

In fall 2016, Florida voters approved an initiative (Amendment 2) to legalize the “medical use” of marijuana. In June 2017, the Florida legislature passed a bill to implement Amendment 2. One provision of that bill defined permissible “medical use” to exclude the use of marijuana “in a form for smoking . . .” Fla. Stat. Ann. § 381.986(1)(j.2) (2017). As discussed in the textbook (page 131), a few other medical marijuana states (e.g., New York) have adopted similar provisions that bar the use of smokable marijuana, based on concerns that breathing smoke is an unpredictable and unhealthy means of administering the drug.

Soon after Florida’s legislation was passed, however, John Morgan—a prominent backer of Amendment 2—filed a lawsuit in a Florida court challenging the legislature’s ban on smokable marijuana. The complaint in People United for Medical Marijuana v. Florida Department of Health claims, inter alia, that the legislature’s definition of “medical use” is inconsistent with the text of Amendment 2, which defines “marijuana” to include “All parts of any plant of the genus Cannabis. . . .” (As discussed in the book (page 21), federal law and most states define “marijuana” in a similar way.) The complaint also alleges that the legislation is inconsistent with the purpose of Amendment 2, which was intended to expand access to medical marijuana. The plaintiffs in the case are seeking a declaration that the legislature’s definition of medical use quoted above is unconstitutional and unenforceable.

People United could be an important case, not for the narrow issue at hand (whether smoking is a medically sound means of administration) but for the bigger question it poses: To what extent may a state legislature tinker with marijuana reforms passed directly by the voters? The book discusses this question on pages 294-295, nn. 4-5. As noted there, many states limit the power of their legislatures to amend ballot initiatives passed by the voters, so the People United court may need to address whether the ban on smokable marijuana amends Amendment 2 or merely implements the initiative.

Here are some links to additional information on the case, which is set for a hearing on a motion to dismiss in the coming weeks:

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