Lawmakers in the Florida Senate Health Policy Committee advanced a bill Feb. 6 that would limit the THC potency of adult-use cannabis products before voters even have the opportunity to weigh in on a potential adult-use cannabis ballot measure.
The committee voted, 7-3, to pass Senate Bill 7050, which would cap the THC in smokeable products at 30% and limit the THC in concentrates and vaporizers to 60%. The legislation would also restrict edibles to 200 milligrams of THC per package, and a single serving of an edible could not exceed 10 milligrams of THC.
A similar bill, House Bill 1269, cleared the House Healthcare Regulation Subcommittee Feb. 1 in a 13-4 vote. That legislation would impose identical THC potency limits in adult-use cannabis should voters approve legalization in the November election.
The Florida Supreme Court is still reviewing whether an adult-use legalization amendment meets the requirements to go before voters this year.
Meanwhile, the Florida Legislature is considering House Joint Resolution 335, which would require a 66.67% supermajority for voters to pass citizen-initiated constitutional amendments. The resolution passed a House subcommittee Jan. 29.
While the resolution would not impact an adult-use legalization measure in this year’s election, it could potentially affect future adult-use initiatives should the 2024 proposal, sponsored by Smart & Safe Florida, face defeat this year.
If approved for the ballot and ultimately passed by voters in November, the adult-use proposal would legalize cannabis possession, purchase and use for adults 21 and older.
S.B. 7050 and H.B. 1269 both aim to restrict adult-use products before they even launch in Florida; the legislation aims to establish a regulatory framework in anticipation of Smart & Safe’s legalization proposal reaching the ballot and being approved by voters. The proposed legislation would come into effect 30 days after the approval of an amendment to the Florida Constitution that allows adult-use cannabis.
The legislation has drawn criticism from NORML, which opposes the imposition of arbitrary THC caps. The organization argues, “Prohibiting adults from accessing these products from state-licensed retailers will not eliminate consumers’ demand for them. Rather, it will encourage consumers to seek out higher-THC products in the unregulated market. It will also move the production of these products exclusively underground. This undermines the primary goal of legalization, which is to provide patients with safe, above-ground access to lab-tested products of known purity, potency, and quality.”
Matt Ginder, a partner in the cannabis practice group at Greenspoon Marder, says potency caps can have serious impacts on cannabis markets.
“It depends on how restrictive the caps are,” Ginder tells Cannabis Business Times. “If a cap is placed on a particular product category that makes it unappealing to consumers, then those consumers are going to look elsewhere for those products.”
Lawmakers’ proposed cap on smokeable flower in the adult-use cannabis market is particularly concerning for Ginder, although he is encouraged that an amended version of the legislation increased the proposed THC cap from 10% to 30% for flower.
“Most flower offered in Florida’s medical marijuana market has more than 10 percent THC, so, a potency restriction of 10 percent THC for flower would have significant consequences to the adult-use market,” Ginder says. “The bill was subsequently amended to increase the THC cap to 30 percent. This cap would have a much smaller impact since most flower currently offered in Florida’s medical marijuana market contains less than 30 percent THC.”
Two other states, Connecticut and Vermont, enforce THC potency restrictions in their adult-use cannabis markets.
“Overall, THC caps have negative consequences for sales and operators in adult-use markets,” Ginder says. “Quantifying the negative effect is difficult, especially in new markets, such as Connecticut. From a practical standpoint, consumers who can’t purchase a specific cannabis product because of THC restrictions will turn to another product category, the illicit market, or, if in close proximity, a neighboring state dispensary that doesn’t have to abide by restrictive THC caps. Vermont’s cannabis regulators acknowledged these consequences and have recommended its state legislature to remove the THC caps.”
Looking ahead, Ginder predicts that legislation taking aim at the THC potency of adult-use cannabis products has a low chance of passing Florida’s Legislature, especially since similar bills have stalled in Tallahassee before.
“There have been successful efforts in past legislative sessions to kill bills seeking to place THC caps on products offered in Florida’s medical marijuana program,” Ginder says. “I think the chances of the bill passing in its current form are low. In particular, the THC cap of 60 percent on concentrates is too restrictive. So, either further amendments will be made, or it dies. If it dies this session, I expect to see similar efforts next session assuming it is approved by voters in November.”
Lawmakers will have myriad other issues to consider if voters approve adult-use legalization this fall, Ginder says, including how Florida’s existing medical cannabis program will coexist with a broader adult-use market.
“This is where the Florida Legislature is falling short,” Ginder says. “They are taking up a bill that addresses one narrow issue—THC caps—when there are a host of policy considerations that need to be addressed. The adult-use initiative allows existing licensed operators to sell products to both patients (through our medical program) and to adults for nonmedical purposes. It also addresses a few other issues, such as possession limits. Aside from that, the initiative defers to the Florida Legislature to pass laws implementing the adult-use program. The Florida Legislature will have to address what current medical marijuana laws will be applicable to the adult-use program, what new laws will be needed for the adult-use program, and how these two programs will interact with each other. The Florida Legislature is missing the opportunity to address these issues this session. It will have to take up the lion’s share of the work next session.”
Ginder expects Florida’s medical cannabis patient count to gradually decrease over time as patients transition to the adult-use market, and he says THC potency caps will play a role here, as well.
“There are two main factors that dictate the pace and degree in which Florida’s medical marijuana program will be negatively affected by adult-use legalization,” Ginder says. “First is capping THC potency for adult-use products while exempting medical marijuana from such caps, which the THC potency bill currently does. Second is levying state taxes on adult-use products while exempting medical marijuana products from such taxes. Both legislative actions will incentivize a certain number of consumers to remain (or even enroll) as patients in Florida’s medical marijuana program.”
In the meantime, S.B. 7050 and H.B. 1269 continue to make their way through the legislative process. The Florida Legislature’s 2024 legislative session is scheduled to end March 8.