When voters passed medical marijuana in Florida in the 2016 election, many celebrated the victory as it would finally mean gaining access to a needed medicine. However, when lawmakers finally passed laws earlier this year to implement the voter-approved law, they made the decision to ban smokable medical cannabis. This immediately became an issue between the state and the group who helped make the initiative become a reality, People United for Medical Marijuana, and lawyer John Morgan, who wrote the initiative.

Before the bill regulating medical cannabis was passed by lawmakers, Morgan had promised he would sue the state if they followed through with their proposed ban on smokable cannabis. The hope behind the amendment was that it would open access to medical marijuana for as many Floridians as possible – but since some many rely on smoking for the most immediate benefits of cannabis, the state’s smoking ban goes against the intention of the amendment.  

“By redefining the constitutionally defined term ‘medical use’ to exclude smoking, the Legislature substitutes its medical judgment for that of ‘a licensed Florida physician’ and is in direct conflict with the specifically articulated Constitutional process,” the initial lawsuit filing states.

Months later, a court date has finally been set, and Leon County Circuit Court Judge Karen Gievers will be hearing the case on January 25th. The state has filed a motion to dismiss the case, but Morgan believes that there is definitely grounds for their case – which means this is likely the first of many court dates before the judge will determine whether it was unconstitutional for the state to ban smokable forms of cannabis.

Part of the argument is that the initiative language allowed legislators to make decisions regarding smoking in public places – but not about its use in private residences or the sale of whole-plant smokable cannabis in dispensaries. Lawmakers argue that allowing whole-plant cannabis to be sold would create a “backdoor” to recreational legalization.

“If something is not allowed in public, it is allowed in private,” Morgan said at a press conference announcing the lawsuit in July. “It’s as clear to all of you as it is to any first-grader taking first-grade logic.”

While there is no telling how long the courts will drag this case out, if Judge Gievers sides with Morgan and his co-plaintiffs (all medical marijuana patients), a whole new set of rules and regulations would have to be written to include smokable forms of medical cannabis. The Florida Department of Health would be responsible for creating these new rules in a timely manner to ensure that patients don’t wait any longer than they already have for the medicine they need.