The attorney general of Florida has submitted a brief to the state Supreme Court detailing the reasons she is seeking to keep a marijuana legalization initiative off the 2024 ballot. The Florida Chamber of Commerce and an anti-drug organization also filed briefs opposing the measure, which is being almost entirely funded by the multi-state cannabis company Trulieve.
After being granted a two-week extension by the court, Attorney General Ashley Moody (R) filed the initial brief on Monday’s deadline. As expected, her office is again pushing to invalidate the cannabis measure, arguing that the way its ballot summary is written is affirmatively misleading to voters on several grounds.
For example, Moody says that the initiative fails to adequately inform voters that marijuana would remain illegal under federal law. Previous court opinions on earlier legalization ballot proposals “overlooked that voters need clear guidance before being asked to lift state-law penalties for the possession of a substance that would subject users to devastating criminal liability under federal law,” her brief says.
It argues that “the rampant misinformation in the press and being peddled by the sponsor of this initiative about its effects makes clarity all the more pivotal.”
New material posted in Re: Adult Personal Use of Marijuana (Attorney General’s initial brief and initial briefs of other parties in opposition). See the docket here: https://t.co/ASHoq9EFh7 pic.twitter.com/WsrzpW3mOK
— FloridaSupremeCourt (@flcourts) June 27, 2023
The attorney general’s second argument is that the measure is misleading because it suggests it would directly increase the number of retailers that would be available for consumers to shop at, when in reality it simply preserves the legislature’s ability to expand retail operations—and there’s no telling if lawmakers will actually have the appetite to do so.
“Floridians would likely care about this issue because greater competition in the marijuana marketplace would decrease retail prices and increase the quality and professionalism of marijuana producers and retailers,” the brief says. “But currently only [Medical Marijuana Treatment Centers] are licensed to engage in the marijuana trade in Florida, and the proposed amendment would not change that.”
The ballot summary also “misleads” because “reasonable voters” would be left with the impression that the measure “limits the scope of the immunity” to possession of up to three ounces of cannabis, Moody said. The brief argues that what it would actually do is impose specific penalties on possession in excess of the allowable amount and restrict the ability of the legislature to increase that limit. It also says that this language would effectively ban “most or all marijuana cultivation” in the state.
“By limiting an individual’s personal possession of marijuana to 3 ounces, the amendment aids corporate interests like Trulieve in entrenching their monopoly of the marijuana market,” it says, referring to a cannabis company that’s financing the ballot campaign. “A ban on possessing more than 3 ounces will make it difficult, if not impossible, for individuals to cultivate marijuana for their own consumption and for the consumption of friends and family, forcing those users into the retail marketplace.”
Finally, the attorney general says that the proposal is misleading because it “neglects to mention that the Department of Health will lack the same constitutional regulatory authority in the recreational marijuana field that it currently has in the medical marijuana field,” and it “fails to disclose that there would be a substantial period when [medical cannabis dispensaries] engage in the unregulated trade of recreational marijuana.”
“In short, the Adult Personal Use of Marijuana amendment asks voters to make consequential changes to Florida’s Constitution yet is not honest with them about what those changes would be,” the attorney general’s office said. “The initiative should be stricken.”
Meanwhile, the Chamber of Commerce submitted a separate brief that challenges the constitutionality of the initiative by arguing that it violates a single-subject for for ballot measures. The chamber said that the proposal “impermissibly embraces the dual subjects of decriminalization and commercialization of recreational marijuana.”
The non-profit Drug Free America Foundation also submitted a brief contending that the initiative “it facially invalid under the Supremacy Clause of the United States Constitution because it conflicts with federal law.”
State officials confirmed earlier this month that the Smart & Safe Florida campaign collected enough valid signatures to qualify the legalization initiative for the 2024 ballot.
The Florida Division of Elections, which updates petition counts on the measure at the end of each month, reported that it had verified 967,528 signatures as of the end of May—exceeding the required 891,523 signature threshold.
At the end of January, the measure cleared an initial major hurdle, getting enough signatures to initiate a state Supreme Court review of the measure’s language, which the attorney general’s office is now challenging. Moody submitted an initial filing to the court last month.
Despite the attorney general’s opinion, activists say that they’ve thoroughly vetted the measure and are confident the court will agree that it complies with constitutional requirements.
Moody made the same argument against a 2022 legalization measure, and the Supreme Court subsequently invalidated it. Now that the first briefing has been filed, reply briefs will be required to be submitted by July 19 and 26 under the extended timeline.
In order to get on the ballot, an initiative must have valid signatures from registered voters totaling at least 8 percent of the district-wide vote in the most recent presidential election in at least 14 of the state’s 28 congressional districts—in addition to the statewide number needed. The marijuana campaign has met the threshold in exactly 14 districts, according to the recently updated state data.
Trulieve has contributed more than $39 million to the Smart & Safe Florida campaign to date.
If approved, the measure would change the state Constitution to allow existing medical cannabis companies in the state like Trulieve to begin selling marijuana to all adults over 21. It contains a provision that would allow—but not require—lawmakers to take steps toward the approval of additional businesses. Home cultivation by consumers would not be allowed under the proposal as drafted.
Adults 21 and older would be able to purchase and possess up to one ounce of cannabis, only five grams of which could be marijuana concentrate products. The three-page measure also omits equity provisions favored by advocates such as expungements or other relief for people with prior cannabis convictions.
A poll published in March found that 70 percent of Florida voters support legalizing marijuana. Florida voters approved a medical cannabis constitutional amendment in 2016.
Here’s what the Smart & Safe Florida marijuana legalization initiative would accomplish:
Adults 21 and older could purchase and possess up to three ounces of cannabis for personal use. The cap for marijuana concentrates would be five grams.
Medical cannabis dispensaries could “acquire, cultivate, process, manufacture, sell, and distribute marijuana products and marijuana accessories to adults for personal use.”
The legislature would be authorized—but not required—to approve additional entities that are not currently licensed cannabis dispensaries.
The initiative specifies that nothing in the proposal prevents the legislature from “enacting laws that are consistent with this amendment.”
The amendment further clarifies that nothing about the proposal “changes federal law,” which seems to be an effort to avoid past legal challenges about misleading ballot language.
There are no provisions for home cultivation, expungement of prior records or social equity.
The measure would take effect six months following approval by voters.
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Here’s the full text of the ballot title and summary:
“Allows adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption by smoking, ingestion, or otherwise; allows Medical Marijuana Treatment Centers, and other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute such products and accessories. Applies to Florida law; does not change, or immunize violations of, federal law. Establishes possession limits for personal use. Allows consistent legislation. Defines terms. Provides effective date.”
Should the initiative make the 2024 ballot, at least 60 percent of Florida voters would have to approve the measure for it to be enacted.
An earlier poll released in 2021 found that a majority of Florida voters (59 percent) support legalizing cannabis for adult use, so that’s a slim margin that shows that advocates will have their work cut out for them if the measure qualifies.
Meanwhile, activists that aren’t directly involved in the Smart & Safe Florida campaign said last year that they were exploring plans to have voters decide on what they hope will be a complementary measure permitting adults to grow their own cannabis at home.
The legalization campaign shouldn’t expect to receive support from Gov. Ron DeSantis (R), a Republican 2024 presidential candidate who said at a recent event that he would not move to federally decriminalize cannabis if elected.