Charlotte’s Web stalemate: What has the Dep’t of Health been doing?

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With apologies to Sir Walter Scott, oh, what a tangled web we weave when first we practice to allow marijuana to be used as medicine.

Implementing the Charlotte’s Web medical marijuana legislation is at a standstill and may remain that way for some time. Last month an administrative law judge rejected proposed rules drafted by the Department of Health. The DOH has until December 15 to decide whether it will appeal the judge’s ruling. The new law authorizes five licenses for nurseries to grow a low-THC strain of marijuana, process oil from the plant, and dispense it to seizure and cancer patients.

“The judge ruled three weeks ago and laid out a roadmap. All of those items could very easily be done. What has the Department of Health been doing?” asked Louis Rotundo a lobbyist for the Florida Medical Cannabis Association. “This is not that difficult.”

Doctors can order the oil for patients starting January 1, but there is no regulatory structure in place for that to happen and no one seems to know whether DOH is working on a new rule or deciding to appeal the ruling.

“The Department of Health will consider all options that will most expeditiously get this product to market to help families facing serious illnesses,” has been DOH communication director Nathan Dunn’s only response to questions since administrative law judge David Watkins issued a ruling Nov. 14.

The FMCA, Costa Farms, Plants of Ruskin, and Tornello Landscape challenged DOH’s proposed regulatory structure and Watkins agreed that the department had overstepped its authority when it inserted a lottery in the licensing process, expanded the pool of applicants for licensing, and included certain financial and security provisions.

The legal wrangling frustrates and concerns the Senate sponsor of the Compassionate Medical Cannabis Act of 2014. State Sen. Rob Bradley says if the dispute is not settled by the March start of the legislative session then he expects there will be a legislative fix. The House sponsor, though, is encouraging DOH to write rules that will withstand judicial scrutiny.

“I’m very disappointed that the Jan. 1st deadline set by the Legislature will be missed,” said state Rep. Matt Gaetz. “But I’d rather measure twice and cut once to make sure that we have the right policy in place to get quality medicine to vulnerable Floridians.”

The main challenge to the proposed rule was over a lottery to select the five licenses available to eligible applicants. Plaintiffs argued the proposed licensing process did not include measurable criteria of an applicant’s nursery, financial or processing expertise.

Testifying during the October hearing, Jennifer Tschetter, DOH’s general counsel, explained that regulators decided on a lottery because the Charlotte’s Web law created more “interest than opportunity” and DOH wanted to avoid long court battles.

“Because we are using random selection process for qualified applicants . . . we’re not going to have experts fighting with each other whether hydroponic or dirt is better and whether one extraction method or another is better and whether this strain of plant is better than this strain of plant.  That’s the litigation we’re trying to avoid because no one is ever going to agree on that,” said Tschetter.

Instead, DOH faced litigation over not using any expertise to evaluate applicants. Its silence calls to mind someone once bitten, twice shy; the department now seems more afraid of being challenged again.

“The Department finds itself between a rock and hard place,” said Jeff Sharkey of the Medical Marijuana Business Association. “(Watkins) ruling that the department’s rule needs to include a more detailed dispensary selection, testing and distribution system, even though the statute provides no clear guidance of what that might be, could leave it open to future challenges.”

Whatever DOH decides, an appeal or a rewrite, it is doubtful that a licensing process would begin before the Florida Legislature convenes the 2015 Legislative Session March 3.

“It’s too early to tell how long this administrative and legal process is going to last but if it is not resolved by the time we get to session in March then I anticipate that we will seek a legislative fix, ” said Sen. Bradley.