This Article analyzes the growing movement to legalize medicinal marijuana across the United States, and the present dilemma of marijuana remaining a prohibited substance under federal law while being legal under state law. The Author notes that this contradiction is particularly troublesome for healthcare providers who must authorize patients’ use of medical marijuana in states where medical marijuana is legal. The Author argues that this contradiction puts healthcare providers at risk of violating federal law by aiding, abetting, or conspiring with a patient to acquire a federally banned substance.
The Author discusses Florida’s past and current medical marijuana initiatives, focusing on problems with the language in those initiatives. The Author also analyzes the decision the United States Court of Appeals for the Ninth Circuit drew in Conant v. Walters, which distinguished that a physician is allowed to “recommend” medical marijuana, but is not allowed to “prescribe” medical marijuana. The Author argues that if Florida wants to move forward with medical marijuana legislation, clarity is needed concerning what kind of physician-to-patient communication is permissible when discussing medical marijuana treatment options with patients. The Author advocates that Florida lawmakers should not follow the unworkable distinctions used by the Ninth Circuit in Conant v. Walters. Instead, lawmakers should ensure that any kind of medical marijuana legislation incorporates language with a focus on open communication between physicians and patients regarding the use of medical marijuana by encouraging physicians to disclose as much information as possible to patients to ensure that patients are making well-informed healthcare decisions.