Policy Analysis | August 2018
Medical Marijuana Laws in Southern States
Of the 15 states comprising the Southern Legislative Conference, five (Arkansas, Florida, Louisiana, Oklahoma and West Virginia) have laws establishing comprehensive medical marijuana programs.* Of those, only Florida’s medical marijuana program is fully operational. Programs in Arkansas, Louisiana, Oklahoma and West Virginia are still in the developmental phases.
Within the public policy community, a consensus has emerged on what constitutes a comprehensive medical marijuana program. Such programs are characterized by four key criteria:
- Access to medical marijuana (often through a dispensary or home grow operation)
- Patient registry and/or other identification systems
- Protection from criminal prosecution
- Allow for a variety of medical marijuana forms (oils, tinctures, sprays, chewables, etc.)
Access to medical marijuana that meets established quality standards is an essential component of state medical marijuana laws. All five Southern states with comprehensive medical marijuana laws have established a framework for licensing dispensaries. While some states outside the region allow qualified patients and/or designated caregivers to grow limited amounts of marijuana, within the Southern region, only Oklahoma allows licensed patients to grow marijuana. Oklahoma State Question 788, approved by voters on June 26, 2018, authorizes licensed patients to legally possess six mature or seedling marijuana plants.
Another component of a comprehensive medical marijuana law is the establishment of a patient registry and/or identification systems. Laws in Arkansas, Florida, Oklahoma and West Virginia provide for the establishment of a patient registry and patient identification cards. In Oklahoma, patient identification cards are referred to as medical marijuana licenses. Louisiana’s medical marijuana regulations currently are being promulgated and are expected to include one or both of these mechanisms. Patient registries often are confidential and available only to law enforcement officials, qualified physicians, and medical marijuana treatment centers/dispensaries for the purpose of verifying the authorization of a qualified patient or caregiver to possess medical marijuana. State laws and regulations may also establish a registration system for physicians qualified to recommend medical marijuana to patients, as has been done in Florida and Louisiana.
Comprehensive medical marijuana laws provide legal protections for qualified patients and designated caregivers registered with the state and/or in possession of a registry identification card who are in possession of medical marijuana within the legal limits established by the state. For example, Arkansas protects patients and designated caregivers from “arrest, prosecution or penalty in any manner,” and from the denial of “any right or privilege, including without limitation a civil penalty or disciplinary action by a business, occupational, or professional licensing board or bureau.” Some state laws also provide protections against employment and housing discrimination for qualified patients and designated caregivers. State law in Oklahoma protects against employment and housing discrimination for licensed medical marijuana patients. Oklahoma law also protects the child custody rights of licensed medical marijuana patients.
Access to medical marijuana in a variety of forms is one of the central components of comprehensive medical marijuana laws because it allows patients, in consultation with a qualified physician, to select a form that best suits their treatment needs. Comprehensive medical marijuana laws allow for a variety of forms, including pills, oils, topical forms (gels, creams or ointments), tinctures, liquids, dermal patches, and suppositories. At this time, only Arkansas and Oklahoma allow for marijuana to be smoked as a mechanism to treat a qualifying condition. In 2017, the Florida Legislature approved Senate Bill 8A, which includes a provision that smoking marijuana is not an approved medical use. On May 25, 2018, a circuit court judge ruled that the ban on smoked medical marijuana is unconstitutional because it conflicts with the intent of the constitutional amendment which legalized medical marijuana in Florida. The state Department of Health is appealing the verdict.
In addition to these criteria, most state laws include a list of conditions authorized for treatment with medical marijuana and a limit on the amount of marijuana a patient or primary caregiver may legally possess. For example, Arkansas permits authorized patients to possess up to 2.5 oz of medical marijuana, while Florida allows patients to possess a 70-day supply but does not specify a weight or volume limit. Another common component of medical marijuana laws is a cap on the concentration of active tetrahydrocannabinol (THC) per portion or “dose.” Arkansas, Florida and Louisiana limit the amount of active THC to 10 milligrams per dose. The maximum amount of active THC per dose is not specified in West Virginia’s medical marijuana laws. However, regulations in the state currently are being promulgated and likely will address this. Likewise, the maximum amount of active THC per dose is not currently specified in Oklahoma’s medical marijuana laws and regulations, nor are qualifying conditions.
Although marijuana – both medical and recreational – is increasingly accepted in states, it remains a Schedule I controlled substance under the federal Controlled Substances Act. Schedule I substances are subject to the strictest regulation and federal law prohibits physicians from prescribing them. The act of prescribing a Schedule I substance could result in a physician losing their license. Instead, state medical marijuana laws allow for qualified physicians to issue a medical marijuana “recommendation” or “referral,” which is considered protected free speech between a doctor and a patient. Further, a physician’s recommendation does not allow patients to directly obtain medical marijuana under state law. Rather, the patient must register with the state and obtain medical marijuana through a licensed dispensary.
* While many states in the Southern region have laws allowing for the use of low THC/high cannabidiol products to treat certain medical conditions, laws in those states do not meet the criteria of comprehensive medical marijuana laws.
Medical Marijuana Laws in Southern States
|State||Forms of Marijuana Allowed||Qualifying Medical Conditions|
|Arkansas||Stalks, seeds, roots, dried leaves, flowers, oils, vapors, waxes and other portions of the marijuana plant and any mixture or preparation thereof. Smoking is permitted.||Cancer, Glaucoma, HIV, AIDS, Hepatitis C, ALS, Tourette's syndrome, Chron's disease, ulcerative colitis, post-traumatic stress disorder, severe arthritis, fibromyalgia, Alzheimer's disease, and other chronic diseases producing specific symptoms.|
|Florida||All parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, sale, derivative, mixture, or preparation of the plant or its seeds or resin that is dispensed only from a dispensing organization for medical use by an eligible patient. Smoking is prohibited.**||Cancer, epilepsy, glaucoma, HIV/AIDS, PTSD, ALS, Crohn's disease, Parkinson's disease, multiple sclerosis, a terminal condition diagnosed by a physician other than the qualified physician issuing the physician certification, and chronic nonmalignant pain caused by a qualifying medical condition or that originates from a qualifying medical condition and persists beyond the usual course of that qualifying medical condition.|
|Louisiana||Oils, extracts, tinctures, sprays, solid oral dosage forms, liquid oral dosage forms, gelatin-based chewables, topical applications, transdermal patches, and suppositories. Smoking is prohibited.||Cachexia/wasting syndrome, cancer, Crohn's disease, epilepsy, HIV/AIDS, muscular dystrophy, multiple sclerosis, seizure disorders, spasticity, glaucoma, Parkinson's disease, intractable pain, post traumatic disorder and some conditions associated with autism spectrum disorder.|
|Oklahoma||Forms include, but are not limited to oils, tinctures, edibles, pills, topical forms, gels, creams, forms medically appropriate for administration by vaporization or a nebulizer, patches, and liquids excluding live plant forms. Smoking is permitted.||Not specified|
|West Virginia||Pill, oil, topical forms (including gels, creams or ointments), tincture, liquid, dermal patch, and forms medically appropriate for administration by vaporization or nebulization. Smoking is prohibited.||Any terminal illness; cancer; HIV/AIDS; ALS; Parkinson’s disease; multiple sclerosis; spinal cord damage; epilepsy; neuropathies; Huntington’s disease; Crohn’s disease; post-traumatic stress disorder; intractable seizures; sickle cell anemia; and "severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or has proved ineffective as determined as part of continuing care."|
|State||Amount||Legal Protection?||Dispensaries Allowed?||Home Grow Allowed?||Allowable Concentration of THC||Patient Registry?||ID Cards?||Method of Legalization|
|Arkansas||2.5 oz||Yes||Yes||No||10 milligrams||Yes||Yes||Ballot measure|
|Florida||70-day supply (amount not specified)||Yes||Yes||No||10 milligrams||Yes||Yes||Ballot measure|
|Louisiana||30-day supply (amount not specified)||Yes||Yes||No||10 milligrams||Not specified||Not specified||Legislation|
|Oklahoma||Patients may possess up to 3 oz of marijuana on their person; six mature marijuana plants; six seedling plants; 1 oz of concentrated marijuana; 72 oz of edible marijuana; and up to 8 oz of marijuana in their residence.||Yes||Yes||Yes||Not specified||Yes||Yes||Ballot measure|
|West Virginia||30-day supply (amount not specified)||Yes||Yes||No||Not specified||Yes||Yes||Legislation|