By Nick Martino, J.D., LL.M
Professor of Legal Studies
If you made a list of the most ridiculous legislative decisions in the last half-century, the classification of marijuana as a Schedule I drug in the 1970 Controlled Substances Act would be at the top of that list.
Schedule I classification means there is no medical purpose for marijuana and puts it in the same category as heroin and ecstasy. To provide some context, the “less dangerous” Schedule II and III substances include hydrocodone, cocaine, methamphetamine, oxycodone and fentanyl.
You may recognize hydrocodone, oxycodone, and fentanyl as drugs currently tearing apart communities with their highly addictive and deadly properties. Yet, marijuana is deemed a Schedule I “blight” on society.
This scheduling created a world where research on the use of medical marijuana has been nearly impossible to conduct. Despite the opinion of Congress, Florida residents voted overwhelmingly to approve the use of medical marijuana in Amendment 2. Now the real fight begins: implementation. The Legislature has defined the word “use” to include edibles and vaping, but not smoking.
Unfortunately, the passage of Amendment 2 failed to seize the opportunity to ensure that the method of medical marijuana use would be left to medical professionals instead of legislators.
The act of smoking is not required in the plain text of the statute. Perhaps this was an error in the drafting, or perhaps it was a strategic choice to avoid losing some voters. We will never know because Amendment 2 is silent.
The current lawsuit filed by attorney John Morgan seems to be more of an exercise in political theater since the language was not put into Amendment 2. With the amount of time and effort Morgan put into this worthy cause, I would be surprised if the language was omitted by accident.
In recent decades, the Legislature has arguably limited the “will of the voter” in passing legislation implementing solar power initiatives, land and water preservation, fair districts and school class sizes. However, when it comes to medical marijuana, the Legislature has chosen only to redefine “use” to protect the public health and welfare.
There should be no dispute that the Legislature has the authority to put into place the framework to implement Amendment 2. The question is whether that legislative framework is reasonable.
The analysis is as simple as weighing the risk and the benefis of smoking. The risk, according to every major health organization in the world, is that the inhalation of smoke on a regular basis comes with significant pulmonary and vascular health consequences.
The Legislature has a duty to protect the public health and welfare by finding ways to deliver the benefits of medical marijuana without exposing patients to unnecessary health risks, which leads to the second part of the analysis: whether there is a benefit that is exclusive to smoking.
The answer is we simply don’t know. There are some studies touted by special-interest groups on both sides of the issue that at best can be described as inconclusive and at worst, highly suspect.
The fact remains that designating marijuana as a Schedule I drug has deprived us of any substantial, unbiased medical evidence that shows there is a benefit to smoking that can’t be obtained through edibles or vaping.
As more research is done on the topic, there might be a need for the Legislature to revisit the issue. However, that research would have to demonstrate that the benefit of smoking can’t be obtained through other methods and that those benefits outweigh the known health risks of smoking.
There is no legal basis to deprive the Legislature of its authority to reasonably regulate the implementation of Amendment 2. The Legislature may lose the reasonable, regulatory ground as we learn more from medical research. We need research. We need knowledge. Right now, we have very little of either.
Until there is adequate medical evidence that smoking is a necessary method for using medical marijuana, the Legislature’s choice excluding smoking as a “use” to avoid secondary health consequences is sound.
Nick Martino is a professor of legal studies at Florida State College at Jacksonville and handles civil and criminal appeals.