Feds Blunt Georgia’s New Law Regarding Medical Cannabis

On October 18, 2023, AGG Healthcare of counsel Jennifer Hilliard ably reported on Georgia’s new regulation that would allow pharmacies to dispense medical marijuana to registered users. Thus, Georgia became the first state in the country to allow pharmacies to dispense medical marijuana. The Georgia Board of Pharmacy enacted rules pertaining to the distribution of medical marijuana by pharmacists and the regulation was signed by Governor Brian Kemp.

By way of background, Georgia decriminalized the possession of “low-THC oil” in 2015, when it enacted Haleigh’s Hope Act. The Georgia Department of Health operates a Low-THC Oil Registry that permits qualified users to obtain a Low-THC identification card. Under current Georgia law, residents who have a qualifying medical condition can apply for registration as a user of medical marijuana. The only legally accepted form of medical marijuana in Georgia is low-THC oil, which cannot contain more than 5% THC — the psychoactive component — and may not be more than 20 fluid ounces in a properly labeled container.

As of October 2023, approximately 120 pharmacies applied to the Georgia Board of Pharmacy for approval to dispense medical marijuana. However, based on the Drug Enforcement Agency’s (“DEA”) recent directive, discussed below, no pharmacy in Georgia may legally dispense medical marijuana.

While the Georgia law decriminalizing medical marijuana has not changed, its recent regulation allowing certain pharmacies to dispense it has run into a major roadblock. On November 27, 2023, the DEA sent a notice to all DEA-registered pharmacies in Georgia, effectively putting the brakes on Georgia’s law regarding pharmacies and dispensing medical marijuana. Specifically, the DEA notice stated that pharmacies “may only dispense controlled substances in Schedules II-V of the Controlled Substances Act.” The memo notes that any product derived from the cannabis plant that has a delta-9-THC content greater than 0.3% is considered marijuana and is classified as a Schedule I controlled substance, making its growing, sale, distribution, or possession illegal under federal law. Notably, while medical marijuana is illegal under federal law, 38 states have enacted legislation legalizing medical marijuana. Twenty-four states have legalized the recreational use of marijuana. There is clearly tension between federal and state laws regarding marijuana as evidenced by the DEA’s recent blocking of Georgia pharmacies from dispensing medical marijuana.

Paradoxically, a registered user of medical marijuana in Georgia may obtain marijuana from one of Georgia’s dispensaries but not a licensed pharmacy. The irony is obvious. The seven licensed dispensaries in Georgia pose geographical obstacles that would have been eliminated if the DEA allowed hundreds of pharmacies throughout the state to dispense marijuana.

Given the DEA’s directive, it is unlikely that any Georgia pharmacy will distribute medical marijuana, Georgia law notwithstanding. The risk of federal criminal prosecution is a serious deterrent.

For years, proponents of medical marijuana, including bipartisan support in both the House of Representatives and Senate have attempted to convince the DEA to declassify marijuana. As of this time, the DEA has remained intransigent. However, that may change.

On August 29, 2023, the U.S. Department of Health and Human Services (“HHS”) requested the DEA to reclassify marijuana to a Schedule III controlled substance. Such a move would dramatically alter the legal landscape surrounding marijuana. However, until the DEA acts upon HHS’ recommendation and takes further action, Georgia’s registered users of medical marijuana will have to rely on the limited number of dispensaries.

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