In a decision that hinged on the use of “and” instead of “or,” Florida’s 1st District Court of Appeals struck down the State’s medical marijuana law, finding that its “vertical integration” scheme fails to comport with the language and intent of the constitutional amendment that initially legalized medical marijuana in 2016.

The amendment, approved by more than 71 percent of Florida voters, defined medical marijuana treatment centers (MMTCs) as “an entity that acquires, cultivates, possesses, processes … transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials.” [Emphasis added]

In the State’s implementing statute, however, the MMTCs were defined differently, specifically as entities that “shall cultivate, process, transport and dispense marijuana for medical use.” [Emphasis added]

The court found that the use of “and” in the statute, as opposed to the “or” in the constitutional amendment, served to create a situation in which the state law requires MMTCs to “conform to a more restricted definition” than required in the amendment itself. In practical effect, the more restrictive statute set up a system of “vertical integration” in which MMTCs had to carry out ALL of the processes listed in the statute (“from seed to sale”) in order to obtain licenses and created an “oligopoly” in the industry in Florida. Also held unconstitutional was the statute’s cap on the number of MMTC licenses that could be issued in the State.

The State may yet appeal the decision, but if it decides to let the ruling stand (or loses on appeal in the Florida Supreme Court), a major rewrite of the laws regulating the medical marijuana industry in Florida is on the horizon. Any new scheme that hews closely to the language of the constitutional amendment and the terms of the court of appeals decision will reduce barriers to entry into the industry in Florida and increase competition – and probably lower prices.

The FisherBroyles Pharmacy and Health Care Law team is pleased to keep you updated on events of interest to those in the healthcare, medical device, and pharmaceutical industries. We will continue to follow issues related to medical marijuana, and the cannabis industry in general, in Florida and across the U.S. Questions may be directed to any of the following attorneys:

Brian Dickerson, FisherBroyles Partner
Brian E. Dickerson

Anthony Calamunci, FisherBroyles Partner
Anthony Calamunci

Nicole Waid, FisherBroyles Partner
Nicole Hughes Waid

Amy Butler, FisherBroyles Partner
Amy Butler