ELUSIVE EDIBLES FOR FLORIDA, BEGINNINGS— 1st PART IN SET

Author: Heather Allman

Start your edibles endeavor by reading the helpful A Beginner’s Guide to Using Cannabis Edibles by KindHealth: Florida Marijuana Doctors for more details on edibles basics. In addition, please refer to PotGuide’s 2020 Cannabis Edibles for further information on edibles.

What has transpired on the Florida edibles front to date?

In 2017, Medical marijuana grower pushes Florida to set rules for edibles was reported by David Smiley:One of the state’s largest cultivators and distributors of medical marijuana is pushing the Florida Department of Health to set rules that would allow thousands of cannabis patients to eat their medicine.

Also in 2017, Florida Medical Marijuana Producers Push for Rules on Edibles was published by Merry Jane, revealing that Florida cannabis companies wanted the Department of Health to speed up the rulemaking process for marijuana edibles so that patients could have another choice for their desired delivery route:

A report from the Sun Sentinel indicates that Surterra Florida, one of the largest medical marijuana companies doing business in the Sunshine State, is now pressuring health officials to begin crafting the rules associated with edible marijuana.

Over the summer, the state legislature passed a law during a special session that gives pot sellers all across the state the freedom to sell edible pot products, such as infused candies and baked goods. However, before any of the state’s pot businesses can begin slinging these types of products, the Department of Health must determine the legal parameters, such as “shapes, forms, and ingredients allowed and prohibited.”

Until the rules are established, the law dictates that no cannabis edibles can be put on the market – restricting the types of cannabis products that patients have access to.

This didn’t work out quite as planned, however. Still no edibles were approved or allowed. In fact, Edible Medical Marijuana Rules Coming, Says Florida Ag Com­mis­sioner was published on January 17, 2019, illuminating how truly slow this edibles process has been:

Edible medical marijuana could become more available in Florida, as the state’s new agriculture commissioner wades into the department’s control over the drug.

Agriculture Dept. to draft edible medical marijuana rules. Commissioner Nikki Fried says they fall under packaged food products. Currently no regulations regarding edibles

Technically, edible medical cannabis is allowed under state law. The problem is the Dept. of Health has yet to finalize any regulations regarding edible products.

Agriculture Commissioner Nikki Fried, however, says her department can formulate rules, since packaged food products would fall under her department. 

Some Florida medical cannabis companies are already moving ahead with developing those products. Trulieve has been working with companies to bring marijuana chocolate bars and fruit leather to Florida. Trulieve is one of Florida’s largest providers of medical cannabis.

JUMP TO: Florida Law on Edibles 

However, this news came a year ago, prior to the March 2019 by Gov. DeSantis announcing that the legislature had rewritten the controversial smokable medical marijuana ban.

But where does Florida stand on edibles right now? 

Current Florida Law Regarding Medical Marijuana Edibles are listed below from the Florida Statutes:

  • Edibles must be made from marijuana oil. 
  • A center that produces edibles must have a permit to operate as a food establishment
  • Edibles can’t be attractive to children
  • They can’t be made in a form that resembles candy

The insightful article Edible and Infused Products/Food Safety Under Florida Medical Marijuana by Florida Cannabiz Lawyers summarizes the current rules and offers help if your company wants to produce and sell edibles. 

What do we know about the final Florida cannabis edible rules so far?

  • The Health Dept. is supposed to be setting rules for acceptable forms, ingredients,  packaging for cannabis edibles. 
  • For now, Medical Marijuana Treatment Centers (MMTC) are not supposed to process or dispense edibles until these rules are set
  • Edibles must be sealed in plain, opaque wrapping, and marked with a universal marijuana symbol

Florida medical cannabis patients are not pleased with the lack of progress on establishing final rules.

In early January 2020, HIGHLIFE Magazine published the insightful Oh, For The Love Of Edibles, It’s Been 3 Years Already! by Jonathan Robbins & Kristen Morris – Akerman LLP which revisits the long —nearly 3 year— road Florida has been traveling to bring cannabis edibles to the dispensary shelves for patient purchase:

In November of 2016, the voters of the State of Florida overwhelmingly passed Constitutional Amendment 2 (Article X, Section 29 of the Florida Constitution), expanding the class of persons eligible for medical us of marijuana in Florida and directing the Department of Health to issue reasonable regulations for the implementation and enforcement of the Amendment.

In accordance with the Amendment’s language permitting the legislature to enact laws consistent with the Amendment, the Florida Legislature amended Section 381.986, Florida Statutes (“Medical Use of Marijuana”) in June of 2017 to, among other things, impose standards for the production of edible products.  Accordingly, edibles have been allowed under Florida law for over 2½ years, but Medical Marijuana Treatment Centers cannot produce or dispense the products until the Department of Health issues its rules.

Since the passage of Amendment 2, patients have sat by the sidelines, waiting for the Department to issue its rules for the production of edibles, but have seen little progress beyond a “Notice of Development of Rulemaking,” with no proposed text of the actual Rule.  Understandably, this has caused considerable frustration among patients, particularly in cases in which recommending physicians believe edibles to be the most effective method of administration. Licensed Florida Medical Marijuana Treatment Centers share that frustration – for obvious reasons.

The article continues by reviewing what is allowed and where the state of Florida currently stands on the edibles front.

On January 8, 2020, Florida’s Department of Health/Office of Medical Marijuana Use Issues Emergency Rules and Notices of Rulemaking by Fred E. Karlinsky and Timothy F. Stanfield appeared, illuminating the current state of edible efforts throughout Florida. 

When did this slow race to the finish begin for cannabis edibles?

In December 2019, the Florida Department of Health took a significant step forward in the regulation of Medical Marijuana Treatment Centers (MMTCs) by issuing notices of proposed rules and rule development for a variety of long-awaited regulations. 

Emergency rules were also noticed for MMTC Renewal Applications and Background Screening: Emergency rules may be adopted if an agency finds there is an immediate danger to the public health, safety, or welfare, and are effective for 90 days while an agency undertakes the rulemaking process. Agency rulemaking is subject to challenge under Florida’s Administrative Procedures Act.”

In truth, is Florida Getting Closer To Allowing Edible Medical Marijuana? Abe Aboraya examines this issue in his April 8, 2019 article for The Daily Chronic:

The Florida Department of Agricultural and Consumer Services has finalized its rules for how medical marijuana growers can get licensed to make and sell edibles. 

Holly Bell is the director of the cannabis program for the agriculture department. She said the big concern is safety from food poisoning and allergen contagion.

That’s our concern because a lot of times the people taking the medical marijuana have compromised immune systems, so we want to especially be diligent and make sure they’re safe.

The next step is for the Florida Department of Health to issue it’s rules. Baker said the health department will put out its rules in the coming weeks and will begin a public input tour.

Subsequently, little progress has been made on the true cannabis edible front, OMMU Notices of Emergency Rule Development appeared in print, including the following directives:

  1. Notice of Rule Development 64-4.206 Low-THC and Medical Marijuana Packaging and Labeling
  2. Notice of Rule Development 64-4.209 Low-THC and Medical Marijuana Solvent Based Extraction and Related Products
  3. Notice of Proposed Rule 64-4.013 Pesticide Use on Medical Marijuana

Most importantly, at the very end, the state is finally setting rules for edible production and sales with the last emergency rule— Notice of Rule Development 64-4.014 Standards for Production of Edibles:

This rule implements s. 381.986(8)(e)8., Florida Statutes, to establish the criteria under which medical marijuana treatment centers may produce edible products. Under section 120.54(7)(a), Florida Statutes, this rule development is responsive to the Petition to Initiate Rulemaking received by the Department of Health on September 29, 2017.

Published in Vol. 43 No. 210, 10/30/2017 —almost three years ago!

As of March 15, 2020, Florida has yet to release set rules for edibles, but the market is sneaking in edible-similar cannabis products to tide over the patients, who like me, are considerably agitated and frustrated by the lack of progress on establishing oncrete rules for the dispensary sales and patient purchases of cannabis edibles over the last 2½ years.

So what types of products close to edibles have Florida medical cannabis patients had in the meantime while impatiently waiting for actual cannabis edibles?

Stay tuned as Florida Fight For Cannabis Edibles continues in my next article.