Since its humble beginnings in 2014, the medical marijuana market in Florida has seen exponential growth, and all signs point to another growth spurt on the horizon in 2022 and 2023.
Since the third quarter of 2017, Florida’s marijuana program has grown from 46,952 registered patients to, as of this writing, more than 656,370 patients. However, with patient penetration slightly under 3% of Florida’s 21.5 million population, the market still has plenty of runway ahead.
The Current Situation in Florida
Currently, Florida has 22 Medical Marijuana Treatment Center license holders — only 17 of which are operational. MMTC licensees own and operate the 396 dispensaries that are currently open statewide. Since Florida’s initial application process in 2014, the Department of Health’s Office of Medical Marijuana Use has not accepted new applications for licenses.
However, many are hopeful that number will see a noticeable uptick as the OMMU released Emergency Rule 64ER21-16, which has been more than four years in the making and paves the way for class members of Pigford v. Glickman and In re Black Farmers Litigation to apply for a coveted MMTC license, one of the country’s most sought-after cannabis licenses. The rule also comes with a 70-page application instruction form and 18-page application-evaluator instructions and manual. Additionally, on December 2, 2021, the OMMU released Emergency Rule 64ER21-10, establishing that the application cycle would be open for five days starting on Monday, March 21, 2022, at 9 a.m. and ending on Friday, March 25, 2022, at 5 p.m.
Although this process is statutorily required to result in the awarding of one Black Farmers License, it’s anticipated that more than one license may be awarded — primarily due to anticipated legal challenges. Because Florida’s Department of Health established a precedent of settling litigation with the awarding of MMTC licenses, it’s not unfathomable to believe the same scenario may ensue here.
Since its initial awarding of five licenses in 2015, the MMTC count has increased to 22, in which the additional 17 licenses were awarded via litigation settlement. Since the precedent has been set, everyone expects the same to happen with the newest round of licensing (the OMMU has already earmarked $2 million to contract with outside legal counsel due to additional lawsuits arising from the enactment of new laws and the adoption of new rules).
Program’s Evolution
Public support for the legalization of medicinal marijuana had been growing in Florida since 2010 and came to fruition on June 16, 2014, when then-Governor Rick Scott signed Senate Bill 1030, also known as the Compassionate Medical Cannabis Act of 2014. SB 1030 legalized low-THC cannabis, such as the strain Charlotte’s Web, for medical patients who had cancer, seizures, epilepsy or suffered from a terminal illness. Florida defined low-THC cannabis as having less than a 0.8% concentration of THC.
In 2016, the 0.8% THC cap was eliminated with a voter-approved constitutional ballot initiative. The new medical marijuana law allowed for medicinal cannabis without arbitrary THC caps and expanded the array of qualifying medical conditions required to become a registered patient. Florida’s program took another huge step forward when Governor Ron DeSantis took office in 2019 and signed his administration’s first bill into law, lifting the ban on the sale of smokable medical marijuana.
Beyond the Horizon
On October 11, 2021, the Department of Health went before the Florida House of Representative’s Health Care Appropriations Subcommittee and requested more than $25 million worth of additional funds to prepare the OMMU for Florida’s inevitable increase in the registered patient count and the issuance of additional MMTC licenses. As a result, the OMMU expects to issue 19 new licenses by July 1, 2022 and another eight by July 1, 2023, thereby more than doubling Florida’s current MMTC count to a total of 49 MMTC licenses statewide within the next 18 months.
It’s anticipated that the licensing cycles after the Black Farmers License issuance will result in an estimated 150 applications for each licensing cycle. As a result, the OMMU is gearing up to add 85 full-time employees to its existing staff of 80 members. As the department ramps up capacity, groups have been strategically formulating how to put their best foot forward in the background. They have been doing so with current rules and application instructions to guide them until recently. With the Black Farmers Application and Evaluator Instructions released, these groups now have recent guidance for making strategic decisions. In addition, the Black Farmers Application and Evaluator Instructions offer some insight into what may be expected for the general licensing cycles to follow.
Vijay Choksi, Brooke Stewart and Sean Coyle are attorneys in the West Palm Beach and Miami offices of Fox Rothschild LLP. They can be reached at vchoksi@foxrothschild.com, bstewart@foxrothschild.com and scoyle@foxrothschild.com.