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MARIJUANA MOMENT
MINNESOTA CONSTITUTION GIVES MARIJUANA GROWERS THE RIGHT TO SELL WHAT THEY
PRODUCE WITHOUT A LICENSE, LAWSUIT CLAIMS
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POLITICS
MINNESOTA CONSTITUTION GIVES MARIJUANA GROWERS THE RIGHT TO SELL WHAT THEY
PRODUCE WITHOUT A LICENSE, LAWSUIT CLAIMS
Published
55 seconds ago
on
May 10, 2024
By
Marijuana Moment
“Any person may sell or peddle the products of the farm or garden occupied and
cultivated by him without obtaining a license therefor.”
By Peter Callaghan, MinnPost
The first lawsuit since the legalization of cannabis in Minnesota that seeks to
use a state constitutional provision to allow the unlicensed sale of cannabis by
the farmer who grows it has been filed in state court.
Medical Marijuana Shows Comparable Efficacy to Opioids with Fewer Adverse Events
Medical Marijuana Shows Comparable Efficacy to Opioids with Fewer Adverse Events
A recent study comparing medical marijuana and opioids for chronic non-cancer
pain suggests that cannabis could offer comparable relief. “Our findings
suggest that both opioids and cannabis for medical use may provide benefits for
a minority of chronic pain patients,” the study says. Additionally, cannabis
shows the advantage of not causing respiratory depression, a risk associated
with opioids that can lead to overdose. Chronic pain affects approximately 20
percent of the global population and is often treated with opioids, While
opioids provide modest pain relief, marijuana seems to have similar positive and
fewer adverse effects. As for cannabis and pain, a growing body of research
suggests that cannabinoids can help ease pain, and may offer benefits over
opioids. A previous study found that marijuana and opioids were “equally
efficacious” at mitigating pain intensity. The study also found that cannabis
provided more “holistic” relief, such as by improving sleep, focus and emotional
wellbeing.
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Four residents who grow small amounts of cannabis at home, which is legal under
the new law, are suing the state Office of Cannabis Management (OCM) saying they
should also be able to sell it under a provision in the state’s constitution.
The lawsuit, which names OCM interim director Charlene Briner and state Attorney
General Keith Ellison, was filed Tuesday in Ramsey County District Court and
challenges the provision in the state’s new cannabis law stating that only those
licensed by the state can sell it. Those licenses are not expected to be granted
until next spring and are expected to be competitive.
But the plaintiffs, citing Article 13, section 7 of the constitution, challenge
the state’s authority to prevent the sale of cannabis by the farmer who grows
it. “No license required to peddle. Any person may sell or peddle the products
of the farm or garden occupied and cultivated by him without obtaining a license
therefor,” says the provision adopted 120 years ago.
That provision resulted from the arrest of a farmer who was selling his excess
melons on the streets of Minneapolis without a peddler’s permit. When hemp and
cannabis were illegal, the few court cases brought under the provision said no
one could sell it, even the farmer who grew it. But when it became legal to grow
and possess on August 1, 2023, did the legal calculus change?
That’s the argument brought by four state residents who are growing up to eight
cannabis plants of their own at home. Three of the four are medical cannabis
patients, including Patrick McClellan, who lives with a rare form of muscular
dystrophy and has been an advocate for medical cannabis since before it was made
legal.
“Plaintiff McClellan’s plants produce more product than he can reasonably
consume for recreational or medicinal purposes,” the lawsuit states. “The costs
of growing at home are significant. The costs include equipment for proper
cultivation as well as additional expenses in order to be statutorily compliant
and cultivate his medicine within his home.
“Plaintiff McClellan cannot reasonably consume all cannabis that he has
cultivated in his home for his medicinal purposes. As a patient who has endured
the struggle of gaining access to affordable and safe medical marijuana,
Plaintiff McClellan would like to offset the costs of growing cannabis by
selling the excess crop to other similarly situated individuals.”
The suit asks the court to declare that people who grow their own cannabis at
home “do not need to obtain a license to sell their product.” And it asks the
court to block the state from bringing “any criminal enforcement of the sale of
cannabis produced from home cultivation pursuant to [the constitutional
provision] based on the absence of a license to do so.”
Ellison spokesperson John Stiles said the office had just seen the lawsuit.
“All I can tell you for now is that we’re reviewing the lawsuit, which of course
was only filed this week,” Stiles wrote.
Minneapolis attorney Jeffrey O’Brien brought the lawsuit. In an affidavit filed
with the case, O’Brien said he first wrote to the Office of Cannabis Management
and the Department of Health asking for a declaratory opinion that they would
not take action against home growers who sell.
Health, which includes the Office of Medical Cannabis, did not respond. A brief
email from OCM stated: “The Office of Cannabis Management does not issue
Advisory Opinions. We are aware of the discussion surrounding the product of the
farm exemption and cannabis and are monitoring it closely. Given that your
question may implicate matters of criminal law, we recommend reaching out to
county attorneys in the relevant jurisdictions.”
O’Brien said Thursday that he doesn’t think his clients are being unreasonable.
They are allowed to grow cannabis and they can even give their excess away, he
said. They should, under the constitution, be allowed to sell what they grow as
long as the buyers are 21 or older, he said.
“As long as we stay within the lanes that you set up in terms of rules and regs,
as long as we limit it to what can be grown legally, it would seem
straightforward that you’re able to sell the products off of those plants per
article 13, section 7 of the constitution,” O’Brien said.
Should OCM adopt rules regarding cultivation safety and product testing, his
clients would have to follow those, he said. But until then, the number of
plants and the age of customers would be the only provisions they would have to
follow if the court agrees they are allowed to sell.
“We’re trying to be reasonable,” O’Brien said. “We’re not saying you can grow an
entire field and sell it without a license. We’re saying to the extent you can
legally grow on your own without a license, you are entitled to sell that
product.”
While this suit isn’t asking for broader rights, if the court finds that
cannabis as a legal farm product is covered by the constitutional provision, it
could have broader implications. A longtime legalization advocate said this last
year: “Starting with the premise that cannabis is a plant, not a crime, we
envision a peaceful community where growing a little hemp to smoke, share, or
sell at farmers’ markets is no more unusual than growing rutabagas or zinnias,”
wrote Grassroots – Legalize Cannabis Party founder Oliver Steinberg in response
to a question about how he thinks the constitution will impact legal cannabis in
Minnesota.
After the law passed, chief House sponsor Rep. Zack Stephenson said he didn’t
think the constitutional provision will impact the regulation created in House
File 100.
“I think the case law suggests that regulation is permissible,” the Coon Rapids
DFLer said at the time. “I think there is strong government interest in
regulating here. This isn’t carrots or pumpkins, this is an intoxicating
substance.”
While obscure to many people, Article 13, section 7 has been top of mind for
legalization advocates, appearing on buttons and websites. A legal challenge
like the one filed this week has been anticipated since legalization.
The case law on the issue is relatively thin. In 1996, Chris Wright was charged
with the illegal sale of marijuana. Wright and his attorney Randall Tigue argued
that Art. 13, Section 7 made the charge unconstitutional. While marijuana was
illegal in 1996 when he was charged, when the constitutional amendment passed in
1906 it was “every bit as legal a substance in the State of Minnesota as wheat,
corn, oats, and soybeans,” Wright argued.
In State v. Wright the state court of appeals disagreed, finding that because
marijuana was illegal and because previous courts had upheld those statutes, the
constitutional provision did not apply. Even the peddler provision of the
constitution does not create a fundamental right that would have imposed
stricter requirements on the government to show its laws are constitutional.
“We do not have the prerogative to disregard the supreme court’s analysis of
marijuana laws,” the appeals court wrote. “Having concluded that this case does
not present the conflict of a fundamental liberty with the established police
power prohibition of the sale of marijuana, we decline to engage in further
discussion of the meaning of Article 13, Section 7.”
Other cases involving otherwise legal farm products found that while the actual
sale might be protected from licensing, state health and safety laws could be
invoked, even to the point of prohibiting the sale of farm products considered
unsafe.
In a case involving the sale of custom-processed meat, the state Supreme Court
found a right to sell, but with exceptions.
“The circumstances leading up to the passage of article XIII, section 7, make
clear that the voters of Minnesota intended to protect the commercial
relationship between farmers and their customers by restricting the state’s
power to license the sale of farm products directly to the consumer,” wrote the
court in its decision in State v. Hartmann. This view is supported by this
court’s observation in a 1925 case that Article 13, section 7 gives “recognition
to the fact that tillers of the soil stand in a peculiar position in reference
to the marketing of their products, and it prohibits the imposition of a license
to sell or peddle the same.”
“We do not believe, however, that article XIII, section 7, can reasonably be
read to grant farmers the right to sell products of the farm, the growing or
sale of which is otherwise prohibited by law. This provision merely provides
that products of the farm for which any person may obtain a sales license; i.e.,
lawful products, may be sold by farmers without obtaining a license to do so.”
The same court puts the exception in a slightly different, but perhaps
significant, way later when it writes that the constitution “grants farmers the
right to sell products of the farm or garden that they are not otherwise legally
prohibited from selling, without obtaining a license.”
This story was first published by MinnPost.
> Closed-Door Negotiations With Minnesota Governor Could Make Tribal Nations
> Major Players In State’s Marijuana Market
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