A Florida medical marijuana certification company is seeking to block an adult-use cannabis legalization ballot initiative in the state Supreme Court, arguing that the reform “disproportionately prioritizes” profits from recreational sales and that it would “significantly impact our business operations and the well-being of our clients.”
My Florida Green, a service that connects patients seeking medical cannabis cards to doctors who can certify them, is asking the court to allow it to submit an amicus curiae brief in the case contesting the Smart & Safe Florida legalization measure that was brought by state Attorney General Ashley Moody (R).
The company says that it’s not opposed to adult-use legalization in principle, but it’s arguing that there are “potential consequences” of the 2024 constitutional amendment that could impact “patient care and public health.”
“We are not attempting to block adult use,” My Florida Green CEO Nick Garulay told Marijuana Moment. “However, we are shedding light on the bastardizing of the constitutional amendment that we passed for medical [cannabis] back in 2016.”
In a letter sent to the court last month, My Florida Green recognized that it missed the deadline to file an amicus curiae brief, but it requested that justices exercise discretion and allow it to proceed given the company’s role in providing medical cannabis services to more than 40,000 Florida patients.
“The Court’s decision will significantly impact our business operations and the well-being of our clients,” they wrote. “Our organization [is] deeply vested in the outcomes of the advisory opinion.”
While the brief lays out a series of legal considerations for the court, some may question the idea of a medical cannabis company advocating against an adult-use expansion, which may reduce demand for services such as those offered by My Florida Green. States that legalize marijuana generally see adult-use sales eclipse those for medical cannabis as the market evolves.
Garulay, the CEO, told Marijuana Moment in a phone interview on Wednesday that while he can “100 percent” understand why people might assume there’s a financial element to the complaint, they “couldn’t be any more wrong” about his own reasons for taking the action.
“I’m in the trenches. I’m literally dealing with with these people on a daily basis to service their needs,” he said. “We help people alleviate their symptoms. We help people get off of or reduce the need for prescription drugs. We help people reduce the need for alcohol, improve their quality of sleep, lower their anxiety, improve their overall quality of life.”
He says his concern is that the state’s medical cannabis market hasn’t matured to the point where it can effectively provide for existing patients, let alone meet the demand for adult-use consumers.
The notice to the court says the legalization initiative may “infringe upon individual privacy rights and equal protection under the law” for medical cannabis patients by requiring “medical disclosures and dosage restrictions.”
“These concerns are framed within the robust privacy protections afforded by the Florida Constitution,” it says, citing case law examples that “underscore the state’s commitment to protecting individual privacy, a key consideration in evaluating the bill’s compliance with constitutional standards.”
“The proposed amendment, by mandating uniform dosage restrictions, might inadvertently lead to unequal treatment,” it continues. “This calls into question the objective of the amendment, in that is a policy crafted to promote the health and welfare of its residents, or a policy crafted to promote recreational marijuana use and availability for commercial purposes.”
“The initiative’s emphasis on potential revenue streams and the broader marijuana market, including recreational use, may raise concerns about whether its primary focus is on health and welfare or on generating revenue. The healthcare system’s primary mission is to promote the health and well-being of patients, and any policy changes should prioritize these goals. If the initiative disproportionately prioritizes recreational use or economic considerations, it may not align with the fundamental principles of healthcare and patient well-being.”
Also, the medical cannabis company argues that the recreational reform proposal “presents a critical test of Florida’s ability to uphold its legislative autonomy while respecting federal law.” It references U.S. Supreme Court precedent in Dobbs v. Jackson Women’s Health Organization, a case that overturned federal abortion rights by determining that states hold authority in health-related policies in the absence of explicit constitutional guidance rooted in the country’s founding history.
“It can be argued that the choice of the states to adopt marijuana, especially for medicinal purposes, aligns with state autonomy to regulate health and welfare of its residents, as the right to regulate marijuana use in the context of medical treatment is not explicitly mentioned in the Constitution as a federal power,” the brief says, “it must therefore fall to the states.”
By contrast, states are not afforded that same level of autonomy over recreational marijuana laws and must generally abide by federal rules on that issue, the brief argues.
As drafted, the measure “fails to delineate a clear, defensible, and constitutionally resilient policy that differentiates between medicinal and recreational use, while upholding both individual rights and federal mandates,” the brief says.
“The Florida marijuana policy amendment requires a critical evaluation of its effects on individual rights, equal protection, and legislative clarity,” it concludes. “It’s vital for ensuring the amendment aligns with constitutional principles while reforming state marijuana laws.”
Garulay said that he hasn’t heard back from the court on whether the brief will be formally accepted.
The attorney general’s main argument is that the ballot initiative is affirmatively misleading, in part because she says voters would not be able to understand from the summary that marijuana would remain federally illegal even if Florida moved to legalize. She made the same argument about misleading ballot language against a 2022 legalization measure, and the Supreme Court subsequently invalidated it.
The campaign and supporters have maintained that the court must respect the intent of the citizen initiative process and allow voters the opportunity to decide on the issue after they turned in nearly one million signatures for ballot placement that have been certified by the state.
The marijuana company Trulieve has contributed more than $39 million to the Smart & Safe Florida campaign to date. The attorney general’s office has accused the business of supporting the measure in order to have a “monopolistic stranglehold” on the state’s cannabis market.
If approved, the measure would change the state Constitution to allow existing medical cannabis companies like Trulieve in the state 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.
Separately, economic analysts from the Florida legislature and the office of Gov. Ron DeSantis (R) estimate that the marijuana legalization initiative would generate between $195.6 million and $431.3 million in new sales tax revenue annually if voters enact it. And those figures could increase considerably if lawmakers opted to impose an additional excise tax on cannabis transactions that’s similar to the ones in place in other legalized states.
A poll released last month found that nearly seven out of ten registered Florida voters say they support the marijuana legalization initiative, with majorities of every demographic surveyed in favor of the reform.
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.
Meanwhile, a separate campaign is actively collecting signatures for a different initiative to give adults a medical marijuana home cultivation option that would not be provided under the Smart & Safe Florida legalization measure. Signature gathering kicked off for the home grow initiative in August, with petitions available online and at certain dispensaries.
The legalization campaign shouldn’t expect to receive support from Gov. Ron DeSantis, a Republican 2024 presidential candidate, who has affirmed that he would not move to federally decriminalize cannabis if elected.
DeSantis signed a bill that took effect over the summer that added restrictions to medical marijuana advertising and manufacturing, prohibiting any products or messages that promote “recreational” cannabis use, while adding more stringent eligibility requirements for workers in the industry.
He also signed legislation in July banning sales of any consumable hemp products—including cannabis “chewing gum”—to people under 21, an expansion of an existing prohibition on young people being able to purchase smokable hemp.
Additionally, the governor approved a bill in June that expressly prohibits sober living facilities from allowing residents to possess or use medical marijuana, even if the patient is certified by a doctor to legally use cannabis therapeutically in accordance with state law. All other doctor-prescribed pharmaceutical medications may be permitted, however.
Read My Florida Green’s request to the court and brief on the marijuana legalization initiative below:
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