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Is Florida's Ban on Smoking Medical Marijuana Unconstitutional?

Marijuana Joint

In 2016, Floridians voted to amend the state’s constitution to authorize doctors to prescribe medical marijuana to patients suffering from debilitating medical conditions. But several of the high-profile individuals who lobbied for this constitutional amendment are now arguing it doesn’t go far enough—it still prohibits the smoking of medical marijuana, which some claim is their safest method of marijuana consumption. Read on to learn more about the proposed statutory changes for which some medical marijuana patients are lobbying.

Florida’s Medical Marijuana Amendment
Florida’s marijuana laws can be tricky to decipher now that medicinal marijuana is legal.  After the constitutional amendment was approved in 2016, the Florida legislature passed a law to codify this amendment and provide doctors, patients, and law enforcement officers with some guidelines for the legal use of medical marijuana. However, this law bans the smoking of marijuana, which a group of plaintiffs argues is an unconstitutional conflict with the 2016 amendment (which did not specifically approve or ban smoking).
On the other side of this argument are lawmakers and health experts who argue that smoking anything is not a therapeutic treatment and therefore not required by the constitutional amendment. The state’s Solicitor General, representing the legislature in this legal battle, argues that banning the smoking of marijuana is well within the legislature’s power to establish health and safety guidelines. With courts around the country upholding bans on cigarette smoking in public places, the Solicitor General argues, a ban on smoking marijuana—still classified as an illegal substance under federal law--is no different.
Is the Marijuana Smoking Ban Unconstitutional?
The constitutional amendment itself broadly defines marijuana as “all parts of any plant of the genus Cannabis.” Because this includes the parts of the marijuana plant normally used for smoking, the plaintiffs argue, the legislative ban on smoking marijuana violates the constitutional amendment’s plain language.
But proponents of the legislature’s statute argue that the amendment’s authorization to enact laws “consistent” with it extends to banning smoking marijuana, so long as the prescribed drug can still be consumed in other forms. They point out that there are a number of ways to derive THC and other active ingredients from each part of the plant and use these ingredients in edibles, vaporizable oils and waxes, and other products that don’t generate secondhand smoke. But one of the plaintiffs in this case argues that smoking is the only way she can safely consume marijuana, and therefore the law restricting her ability to smoke marijuana should be struck down.
Whether the amendment permitting medical marijuana under Florida law should grant doctors the ability to prescribe marijuana joints (as opposed to edibles, suppositories, or vaping) is still up for debate. Depending on the outcome of this lawsuit, the legislature may decide to amend its law to carve out certain exceptions for patients whose doctors have specifically recommended smoking as a therapeutic treatment. Alternatively, the legislature may be forced to amend this law if the Florida Supreme Court determines it’s an unconstitutional restriction on the 2016 medical marijuana amendment.


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