On January 9th, 2024, the state of Florida’s 2024 legislative session began. With daily headlines surrounding Florida’s billion-dollar marijuana market, many are keeping a close eye on the Sunshine State to see how its marijuana industry develops in the new year. Now, let us take a dive into all the bills that have been filed thus far relating to Florida’s marijuana industry:
Senate Bill 1300 and House Bill 1497 are primarily focused on making amendments to section 381.986, Florida Statutes, regarding the Pigford/BFL batching cycle that was held in 2022. Although Governor DeSantis enacted amendments last year through House Bill 387 to expand the number of licenses issued under these statutory provisions, there has been ongoing obstacles relating to the issuance of additional Medical Marijuana Treatment Center (“MMTC”) licenses to Pigford/BFL applicants. From an applicant passing prior to being issued a Notice of Intent to Deny/Award from the Florida Department of Health, Office of Medical Marijuana Use (“OMMU” or “Department”) to hurdles faced by applicants trying to demonstrate they have been registered to do business in Florida for at least five (5) consecutive years, Florida legislators have put forth substantial effort to amend the law to ensure more diversity in Florida’s booming medical marijuana industry. Further, in lines 73–76 of the proposed bills, legislators are trying to find a path to clear up the inconsistencies between the Florida Constitution and the statutory and regulatory laws. Under Article X, section 29(b)(5) of the Florida Constitution, a “MMTC” is defined as an “entity” licensed to cultivate, process, and dispense medical marijuana; whereas, the Department’s Emergency Rule 64ER21-16, including its Application Instructions, permits an individual to be licensed. Such inconsistencies have created numerous issues for applicants and regulators alike. Since the passage of House Bill 387, three (3) applicants from the Pigford/BFL batching cycle have been licensed – Terry Donell Gwinn, Shedrick McGriff, and Willard Meeks. If either bill is enacted, Florida’s medical marijuana industry will hopefully see additional diverse applicants be licensed as MMTCs, adding to the current twenty-five (25) licenses in the state.
House Bill 1053 sets forth proposed amendments for newly licensed MMTCs in relation to their facilities’ distance from religious institutions, day care facilities, and schools. In contrast to the prior regulations which required a minimum of 500 ft. distance from the above-described properties, the proposed law would require an extra 1,000 ft., thus requiring new MMTCs’ facilities to be a minimum of 1,500 ft. away from religious institutions, day care facilities, and schools. Such proposed increase in distance would also apply to new retail vape shops and new locations for on-premises consumption of alcoholic beverages. If this law passes prior to the awarding of the April 2023 batching cycle, it could greatly affect the awarded applicants’ operations as they proposed facilities in compliance with the current 500 ft. distance requirements.
Senate Bill 1096 and House Bill 1215 propose to make minor amendments to section 381.986, Florida Statutes, regarding the packaging and labeling of medical marijuana edibles. Presently, the proposed bills not only require additional items to be included on edibles’ receptacles such as nutrition facts and allergens, but also makes mandatory that it include a statement of the edible’s identity as set forth in 21 C.F.R. § 101.3 and the net quantities as provided in 21 C.F.R. § 101.(5)(a)–(c). Moreover, the bills propose to remove the requirement that each edible be individually sealed in plain, opaque wrapped marked only with the marijuana universal symbol.
Similar to other states trying to bridge the gap between state legality and federal illegality regarding tax deductions licensed marijuana businesses can make, Senate Bill 974 and House Bill 1427 are proposing tax deductions and credits for MMTCs licensed under section 381.986, Florida Statutes, to help licensees with the financial burdens faced by 280E federal tax burdens.
Senate Bill 1514 and House Bill 1435 are proposing a waiver on the fees related to the issuance and/or renewal of medical marijuana use registry identification cards for veterans, so long as they provide the Department one of the eligible proof of identification such as a DD Form 214 issued by the US Department of Defense.
The creation of an adult-use market in the Sunshine State has been a hot topic for the past several months as opponents to the prospective Florida ballot initiative sponsored by Smart and Safe Florida, and heavily funded by Trulieve, filed suit in the Florida Supreme Court asserting that it is unconstitutional as its language is misleading and violates Florida’s single-subject rule. Oral arguments in front of Florida’s Supreme Court Justices were held in November 2023, and many are anxiously awaiting to hear their ruling as it is the last obstacle before the initiative can be placed on the November 2024 ballot. If the Florida Supreme Court allows the initiative on the ballot, 60% of Floridians must vote “Yes” to see an adult-use program in the Sunshine State.
Although no ruling has been made yet, Representatives Randall Fine (R) and Ralph Massullo (R) introduced a controversial bill regarding the potency of THC products if adult-use is passed in November. House Bill 1269 would place a 10% cap on smokable marijuana products, as well as a 60% THC cap on marijuana products in all other forms, except edibles. Edibles for personal use would be limited to no more than 200 milligrams of THC, while a single serving portion cannot contain more than 10 milligrams of THC.
Hemp & Kratom
In Florida’s hemp industry, Senate Bill 1698 and House Bill 1613 are proposing to make a few modifications to section 581.217, Florida Statutes. Some definition revisions include, but are not limited to, updated definitions of “hemp” and “hemp extract” to clarify the limitations of hemp extract concentration and what substances are included; a broader definition for “attractive to children;” and a newly implemented definition of “total delta-9-THC concentration.” Further, all products manufactured and sold at retail must meet the new total delta-9 THC limits set forth in the proposed bills. Moreover, the new proposed provisions prohibit the Department of Agriculture and Consumer Services from granting permission to remove or use certain hemp extract products until it determines such products comply with state law.
Senate Bill 842 and House Bill 861, also referenced as “Florida Kratom Consumer Protection Act,” not only define what “kratom extract” entails, but also sets forth prohibitions for kratom processors, including, but not limited to, selling products that do not include directions for the safe and effective use of the product and having a label that states any claim that the product is intended to diagnose, cure, treat, or prevent medical conditions and/or diseases. Further, any violation of the newly proposed prohibitions could now result in an administrative fine anywhere from $500 to $1,000.
Pursuant to the proposed bill, House Bill 1677, Representative Kristen Arrington (D) requests to make amendments to section 893.13(5), Florida Statutes. Under her suggested revisions, medical cannabis cardholders from other states would be exempt from facing criminal penalties for bringing in medical cannabis into Florida that they received legally from their state’s medical program. In line with Representative Arrington, Senator Shevrin Jones (D) proposes reducing criminal penalties for a first, second, or third violation if the offense is the possession of 20 grams or less of cannabis with Senate Bill 94.
Senator Tina Polsky (D) introduced Senate Bill 166 in October 2023 to create protections for public employees who use medical marijuana as qualified patients. Pursuant to her proposed bill, a public employer may not take adverse personnel action, such as discharge, suspend, or demote, against an employee or job applicant who is a qualified patient as permitted under section 381.986, Florida Statutes. However, a public employer may take such action against an employee if the public employer establishes by a preponderance of the evidence that the lawful use of medical marijuana impaired the employee’s ability to perform his or her duties. This bill further establishes a process for which a public employer may drug test the employee and provide notice of a positive test, a process for the employee to provide an explanation as why his or her test is positive, including the option to submit a physician certification for medical marijuana or his/her medical marijuana use registry identification card as part of his/her explanation, and an appeal process for the employee to dispute the violation in civil court. This bill is an amazing step towards protecting public employees who utilize medical marijuana in the state for their conditions.
With over 868,000 qualified patients registered in Florida’s medical marijuana program and an adult-use program on the horizon, the Sunshine State is one of the premiere marijuana markets in the United States.
Paula Savchenko, Esq., is an attorney and consultant working primarily in the cannabis industry on a multi-state level. More specifically, most of her work involves competitive licensing and regulatory compliance in the cannabis industry. Savchenko’s success in attaining competitive licenses for her clients comes from having a good understanding of what regulators are looking for, as well as a strong network of contacts in the cannabis industry. She has worked on competitive applications for marijuana businesses in Alabama, California, Colorado, Florida, Illinois, Massachusetts,