Florida Court Considers Cannabis Legalization | Canna Law Blog™

Home | Canna Law Blog | Florida Court Ponders Cannabis Legalization On November 8, 2023, the Florida Supreme Court held oral arguments on the validity of a constitutional amendment initiative to legalize adult-use cannabis (case number SC2023-0682). The Florida Constitution requires the state's Attorney General to request an advisory opinion from the Supreme Court on the validity of any ballot initiatives. Attorney General Ashley Moody has taken the position that the proposed amendment does not meet statutory requirements. Oral arguments largely centered on two issues, the first being whether the ballot summary is misleading for stating that it would "allow[] [existing] Medical Marijuana Treatment Centers [MMTCs], and other state licensed entities" to engage in the sale of and other activities involving adult-use cannabis. In the Attorney General's view, as expressed during oral arguments by Chief Deputy Solicitor General Jeffrey DeSousa, this constitutes a "promise" that the amendment by itself cannot deliver, since additional legislative action would be required for "other state licensed entities" to exist. Stated differently, if adopted, the amendment would give rise to a new legal situation in which MMTCs could immediately sell adult-use cannabis, but any non-MMTC entity would still need to undergo a licensure process. As the passage of the amendment by itself would not bring about "other state licensed entities", the Attorney General's reasoning goes, the ballot summary is misleading. The justices that intervened did not appear receptive to the Attorney General's stance. Chief Justice Muñiz stressed that Florida law requires that the ballot summary be "an explanatory statement ... of the chief purpose of the measure." He was skeptical as to whether any voters that otherwise support adult-use cannabis legalization might vote against the measure just because the Legislature might not eventually provide for licensure of non-MMTC entities. In response, the State suggested that voters who "oppose monopolies" might take a principled stand against an MMTC-only regime, even if they otherwise support legalization. Whether this is a credible proposition or not, it certainly is a rich one, considering the high barriers to entry Florida has established for the medical cannabis industry. Discussion then turned to whether the summary was misleading because it states that it would "allow[] adults ... to possess, purchase, or use marijuana ... for non-medical personal consumption," even though, as the Attorney General's August 2 brief argues, given continuing federal prohibition, "not a single instance of recreational marijuana use will be lawful." Although the summary also clarifies that the amendment "applies to Florida law; does not change, or immunize violations, of federal law," the state considers this language is insufficient to eliminate "the confusion caused by [the term] "allow[]." Reactions by the justices to this argument were mixed. Justice Canady said he was "baffled" by the suggestion that a voter could somehow conclude that the conduct authorized by the proposed amendment would be legal under federal law. On the other hand, Justice Sasso took issue with the assertion by the initiative sponsor (Smart & Safe Florida), represented in court by John Bash, that the summary "explicitly" limited the amendment's impact to Florida law. In one of the proceedings' highlight reel moments, Bash replied that "we expect voters to be able to read things in context." There was also some discussion about whether the initiative might violate Florida's single-subject requirement for constitutional amendment initiatives. Lining up with the Attorney General against the placement of the initiative on the ballot, the Florida Chamber of Commerce ("Chamber"), represented by Samuel Salario, argued that, if approved, the initiative would bring about the "hidden result" of creating an "immediate oligopoly" for MMTCs, with no timeline in place for licensure of non-MMTC entities. Justice Canady seemed particularly unreceptive to this argument, proposing that the Chamber's "fundamental position here is that this is just not a proper subject for the ... initiative process, it is a policy matter [and that] there is really no way that the citizens could act in this arena via the initiative process effectively." In another highlight reel moment, he added that the single-subject requirement is "turning into ... a straitjacket on the people." After hearing today's arguments and more generally tracking the development of this case, it is hard not to conclude that the Attorney General just wants to keep adult-use cannabis illegal in Florida, throwing anything at the wall to see what sticks. In this sense, it was encouraging to see at least some justices pushing back on some of the more tortuous arguments being made by the Attorney General and its allies. There seemed to be a sense that, at least for some justices, the endless hairsplitting over cannabis initiatives has gone too far. And indeed it has: It is time the people of Florida had a voice when it comes to adult-use legalization. Check Out Our Cannabis Law Services Share Twitter Facebook LinkedIn E-mail Comment Fred Rocafort Fred leads Harris Sliwoski’s intellectual property practice and is the coordinator of the firm’s international team. Much of Fred’s practice consists of helping cannabis businesses protect their brands. He also works with entrepreneurs and companies entering the Web3 space, a new frontier for IP law. Prior to joining Harris Sliwoski, Fred worked overseas for more than a decade, in both government and private sector roles. Fred is a regular contributor to the award-winning China Law Blog and Canna Law Blog. Fred began his career overseas as a U.S. consular officer in Guangzhou, China, where he advocated for fairer treatment of American companies and citizens in China and for stronger intellectual property rights enforcement. After entering the private sector, Fred worked at a Shanghai law firm as a foreign legal advisor and later joined one of the oldest American law firms in China, helping foreign companies navigate the Chinese legal environment. He also led the legal team at a Hong Kong-based brand protection consultancy, spending most of his time out in the field, protecting clients against counterfeiters and fraudsters in Greater China, Southeast Asia and Latin America. In addition to his IP work, as a native Spanish speaker, Fred works closely with different Harris Sliwoski teams on Latin America and Spain matters. Fred also provides advice to cannabis industry participants and other businesses on import and export transactions. Fred is an ardent supporter of FC Barcelona—and would be even in the absence of Catalan forebears who immigrated to Puerto Rico in the mid-1800s. 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