Florida Attorney General Argues Adult Use Amendment is Misleading

A proposed constitutional amendment legalizing the recreational use of marijuana has received the required number of signatures to be eligible for placement on the ballot. However, before Floridians can vote on this amendment, the proposed initiative must survive Supreme Court review. 

Florida’s largest provider of medical cannabis has contributed more than $38 million towards a constitutional amendment that would permit “… the possession, purchase and use of marijuana products … by an adult 21 years of age or older for non-medical personal consumption….” The proposed amendment would authorize the same licensed companies currently serving medical patients to sell marijuana to any adult for recreational use.

The Florida Supreme Court must review the proposed amendment for compliance with two requirements. First, the summary of the amendment placed on the ballot (“ballot summary”) must accurately reflect what the text of the amendment will do. Second, the amendment must impact only one subject. If the amendment fails either of these tests, the Supreme Court will reject the amendment, and it will not appear on the ballot. 

Florida’s Attorney General filed legal briefs with the Supreme Court, arguing that the ballot summary is misleading; therefore, the proposed amendment should not appear on the ballot for voter consideration. The ballot summary states that the amendment would “[a]llow adults 21 years or older to possess, purchase, or use marijuana.” However, marijuana is illegal under federal law. Sponsors of the amendment attempt to address this issue by indicating that the proposed amendment “[a]pplies to Florida law” and “does not change, or immunize violations of, federal law.”

The Attorney General counters that is false and misleading because “… the amendment would make federal criminals of those who take advantage of it.” Interestingly, they point to evidence that Trulieve’s CEO has led to further confusion, citing the following public statements, “the freedom to use cannabis for personal consumption” and “a freedom which is currently enjoyed by more than half of America’s adults.”

 

Next, the Attorney General claims that the ballot summary is misleading because it suggests the amendment authorizes “other state-licensed entities” beyond the current MMTCs to cultivate and distribute marijuana. This is claimed to be misleading because that power currently resides with the Florida legislature; the amendment simply does not change that authority. Meaning the voting public may be misled to believe that by voting in favor of this amendment, they are granting authority to the legislature to license additional producers of marijuana. This is untrue because that power currently exists. 

The legal brief goes on to discuss the argument that the current regulatory structure prevents competition and promotes a monopoly held by the current MMTC license holders. The concern is that the misleading ballot summary implies that this issue is addressed by this amendment. However, in reality, the language is simply misleading and attempts to appear to open up the marijuana market to more producers when in fact, it does not. 

The proposed amendment prohibits a person from possessing more than 3.0 ounces of marijuana. The Attorney General argues that the voters are not adequately informed of the impact of this restriction, stating,

 “[t]hat does not simply cap the scope of the immunity created by the amendment; it affirmatively outlaws the possession of more than 3 ounces of marijuana. As a result, the Legislature under the amendment would have no power to permit Floridians to possess more than 3 ounces of marijuana, with the practical effect that the proposed amendment bans all or most marijuana cultivation by individuals.”

Here, the Attorney General is arguing that the proposed amendment would prevent any future attempts by the legislature to authorize homegrown marijuana. 

Other interested parties have also filed briefs opposing this proposed amendment. For example, the Florida Chamber of Commerce filed a brief arguing that the amendment violates the single-subject rule. The Chamber argues this rule is violated because it involves a personal right (decriminalizing and immunizing adult use of marijuana) and the commercialization of recreational marijuana (authorizing MMTCs to sell to adults for recreational use). 

Drug Free America Foundation, a self-described “drug prevention and policy organization committed to developing strategies that prevent drug use and promote sustained recovery,” also filed a brief in opposition. Drug Free argues that the amendment fails because it creates a conflict with Federal law, and the ballot summary “gives no notice to the voters of the broad grant of civil immunity to marijuana users.” 

The backers of the amendment will have an opportunity to respond to these briefs. After all written briefs are submitted, the Supreme Court may order oral arguments before ruling. If the Supreme Court permits the amendment to appear on the ballot, then Floridians will have the final say. It takes a supermajority, 60%, of the voters to approve a constitutional amendment.