Florida Attorney General Ashley Moody and others are trying to persuade the Florida Supreme Court to strike down a ballot initiative that would amend the state constitution to allow personal possession of marijuana for adults aged 21 and up.
Florida has a medical marijuana program, and this new initiative would grant existing medical marijuana companies the exclusive right to sell marijuana products, unless the Legislature decides to offer new licenses in the future.
If the measure survives Moody’s challenges, the question facing voters will be whether they would be willing to confer market power to a handful of companies to allow consumers greater access to marijuana.
The largest of Florida’s medical marijuana companies, Trulieve Cannabis, has contributed all of the $39.05 million that Smart & Safe Florida, the political action committee formed to sponsor the initiative, has received.
The committee has used this money to meet the threshold of signature collection needed to qualify the initiative for the ballot by turning in 1,013,325 verified signatures from eligible Florida voters. That number easily is more than the 891,589 required.
If the initiative is successful, Trulieve and other medical marijuana licensees would dramatically expand their market by gaining the ability to sell marijuana products to all adults regardless of medical need.
Despite this, Florida’s political class has remained consistently hostile to marijuana legalization. They have inhibited implementation of the medical marijuana law that voters approved in 2016. Following adoption of that initiative, Florida lawmakers first declined to consider implementing the statutes that the initiative required them to adopt until then-Gov. Rick Scott called them into a special session to complete their constitutional responsibilities.
After that, they then adopted a statute that banned smokable products — a move that state courts later ruled violated the intent of the initiative. The DeSantis administration later fell years behind in awarding licenses to operate marijuana businesses, drawing further admonishment in state courts.
Most recently, the DeSantis administration raised the fee for these licenses more than 20 times the initial cost, going from $60,000 to $1.33 million.
Into this background steps Attorney General Moody, a DeSantis ally, with a legal challenge seeking to prevent Trulieve’s initiative from going to the voters.
Part of Florida’s process to qualify an initiative for the ballot is for the state Supreme Court to certify the initiative’s validity, which gives interested parties the chance to submit briefs in opposition. Moody has done so, along with the Florida Chamber of Commerce and the Drug Free America Foundation.
Moody makes several spurious arguments in her brief.
First, she (along with the Drug Free America Foundation) claims that the summary is misleading because it states adults 21 years or older could legally purchase, possess or use marijuana, but she notes those actions would remain illegal under federal law.
In truth, the initiative is a proposed amendment to Florida’s constitution and has no direct relation to federal law. More than a dozen states have legalized marijuana by initiatives containing similar language.
Further, the plain text of the initiative’s summary statement that would appear on the ballot undermines Moody’s argument. It expressly states the initiative “does not change or immunize violations of federal law.”
Second, Moody argues the initiative would permit unregulated sales because it doesn’t specifically grant the state health department regulatory authority over recreational marijuana sales. The truth is the initiative states that only existing Medical Marijuana Treatment Centers (MMTCs) would be able to sell marijuana, along with other entities to whom the department may grant licenses in the future. The health department regulates all medical marijuana treatment centers, so no one would be able to sell marijuana without health department oversight.
Third, Moody argues the initiative might mislead voters into believing there will be more competition in Florida’s marijuana market. The initiative is clear that it restricts any commercial marijuana activity to current medical marijuana treatment centers, although it theoretically allows the Legislature to authorize additional adult-use licenses in the future.
Trulieve controls 125 of the 571 medical marijuana dispensaries operating in Florida. Its initiative would restrict any new entrants from coming into the marijuana market unless the Legislature passes a law allowing for the award of new commercial licenses.
Based on experience to date, Florida lawmakers appear unlikely to do this in the foreseeable future. It’s possible voters will mistakenly believe the initiative would lead to increased competition, but this speaks more to the obstinance of Florida’s political class than to the language of the initiative itself.
Moody’s legal arguments are mostly red herrings.
Trulieve’s attempt to control the Florida market, however, is a real issue upon which the initiative should be debated.
The question is: Are Floridians willing to accept a small cartel of legal suppliers for adults to gain the personal freedom to make their own choices regarding marijuana consumption?
Madison Carlino is a research intern, Geoffrey Lawrence is research director, and Adrian Moore is vice president at Reason Foundation.