Louisiana Legislature Develops Framework for Medical Marijuana Program

This year, Louisiana became the first southern state to develop a comprehensive, working medical marijuana program.  On May 19, 2016, Governor John Bel Edwards signed SB 271 into law, amending and reenacting La. R.S. § 40:1046.  As amended and reenacted, La. R.S. § 40:1046(A)(1) now provides that:

…a physician licensed by and in good standing with the Louisiana State Board of Medical Examiners to practice medicine in this state and who is domiciled in this state may recommend…tetrahydrocannabinols, or a chemical derivative of tetrahydrocannabinols for therapeutic use by patients clinically diagnosed as suffering from a debilitating medical condition.

(Emphasis added.)  The statute further defines “debilitating medical condition” as “cancer, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, cachexia or wasting syndrome, seizure disorders, epilepsy, spasticity, Crohn’s disease, muscular dystrophy, or multiple sclerosis.”

Physicians may recommend marijuana.

Before it was amended, La. R.S. § 40:1046 provided that physicians could “prescribe” medical marijuana.  This was problematic because “[c]urrently, it is a federal violation to prescribe cannabis for medical use since it is a Schedule 1 drug under the [federal] Controlled Substances Act.”  See Legislative Fiscal Office, Fiscal Note on SB 271, May 11, 2016.  In contrast, the statutory amendment changing “‘prescribed’ to ‘recommended’…is anticipated to legally allow physicians to instruct applicable pharmacies to dispense medical marijuana.”  Id.  The statutory amendment further specifically defines “recommend” or “recommended” to mean “an order from a physician domiciled in Louisiana and licensed and in good standing with the Louisiana State Board of Medical Examiners and authorized by the board to recommend medical marijuana that is patient-specific and disease-specific…and is communicated by any means allowed by the Louisiana Board of Pharmacy to a Louisiana-licensed pharmacist in a Louisiana-permitted dispensing pharmacy…and is preserved on file as required by Louisiana law or federal law regarding medical marijuana.”  La. R.S. § 40:1046(A)(3).  In conformance with this definition, the Louisiana State Board of Medical Examiners and the Louisiana Board of Pharmacy are required to promulgate, and have promulgated, rules and regulations governing physicians recommending medical marijuana and pharmacies dispensing medical marijuana, respectively.  La. R.S. § 40:1046(B) and (C).

Licenses for pharmacies dispensing medical marijuana.

As amended, La. R.S. § 40:1046 requires the Louisiana Board of Pharmacy to develop an annual, nontransferable specialty license for a pharmacy to dispense recommended medical marijuana, but can grant no more than ten (10) such licenses.  La. R.S. § 40:1046(G). Consistent with this mandate, the Louisiana Board of Pharmacy has determined to reserve one such license, termed a “marijuana pharmacy permit,” for each of the following regions recognized by the Louisiana Department of Health: (1) Metropolitan (parishes of Jefferson, Orleans, Plaquemines, and St. Bernard); (2) Capitol (parishes of Ascension, East Baton Rouge, East Feliciana, Iberville, Pointe Coupee, West Baton Rouge, and West Feliciana); (3) Teche (parishes of Assumption, Lafourche, St. Charles, St. James, St. John, St. Mary, and Terrebonne); (4) Acadian (parishes of Acadia, Evangeline, Iberia, Lafayette, St. Landry, St. Martin, and Vermilion); (5) Southwest (parishes of Allen, Beauregard, Calcasieu, Cameron, and Jefferson Davis); (6) Central (parishes of Avoyelles, Catahoula, Concordia, Grant, LaSalle, Rapides, Vernon, and Winn); (7) Northwest (parishes of Bienville, Bossier, Caddo, Claiborne, DeSoto, Natchitoches, Red River, Sabine, and Webster); (8) Northeast (parishes of Caldwell, East Carroll, Franklin, Jackson, Lincoln, Madison, Morehouse, Ouachita, Richland, Tensas, Union, and West Carroll); and (9) Southeast (parishes of Livingston, St. Helena, St. Tammany, Tangipahoa, and  Washington).  See Regulatory Proposal 2016-A – Marijuana Pharmacy. The Louisiana Board of Pharmacy intends to retain the remaining license until it better understands the demand for medical marijuana in each of the nine districts.  Id.  When the Board is prepared to receive and process applications for, and issue, marijuana pharmacy permits, it will publish a notice to that effect.  Id.  As federal regulation prohibits national pharmaceutical chains from qualifying for dispensary licenses, only independent Louisiana pharmacies will be permitted to apply for these permits.

Licenses for cultivation of medical marijuana.

As amended, La. R.S. § 40:1046 also requires the Louisiana Department of Agriculture and Forestry to develop an annual, nontransferable specialty license for the production of recommended medical marijuana, but can grant no more than one (1) such license.  La. R.S. § 40:1046(H)(2).  The statutory amendment further provides that the Louisiana State University Agricultural Center (“LSUAC”) and the Southern University Agricultural Center (“SUAC”) “have the right of first refusal to be licensed as the production facility, either separately or jointly.”  Id.  As LSUAC and SUAC have since exercised this option, there will be no private producers of medical marijuana unless La. R.S. § 40:1046 is subsequently amended to provide otherwise.

Liability for cultivation and distribution of medical marijuana.

A final note.  On August 1, 2016, the Louisiana legislature enacted SB 180, which provides, in part, that a “person who is a patient of the state-sponsored medical marijuana program in Louisiana” is exempt from prosecution for the possession of medical marijuana.  See La. R.S. § 40:966(I).  While this  exemption also specifically extends to caregivers (as that term is defined in La. R.S. § 15:1503) and any parent of a minor child who possesses medical marijuana on behalf of their minor child, it does not provide for a similar exemption from prosecution for cultivators or dispensaries of medical marijuana, or the respective employees of each. Technically, then, neither the cultivation nor distribution of medical marijuana is currently legal under Louisiana law despite the enactment of SB 271.  It is anticipated, however, that the Louisiana Legislature will remedy this omission in the near term.

          Author:  W. Scott Keaty and Joshua G. McDiarmid
          Practice Area:  Medical Marijuana Law
          Date:  December 30, 2016

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