By: Matthew Ginder, Partner
On August 8, 2022, an industry-led campaign in Florida filed an adult-use marijuana legalization initiative with the goal of making it on the ballot for the 2024 general election. This blog will summarize: (A) the proposed ballot initiative, (B) the process by which an initiative makes it on the ballot, (C) newly enacted judicial scrutiny that the initiative will likely be subject to, and (D) the impact adult-use legalization will have on Florida’s existing marijuana market.
A. Summary of Ballot Initiative
The adult-use ballot initiative builds upon Florida’s existing medical marijuana program, allowing licensees (known as Medical Marijuana Treatment Centers or MMTCs) to sell marijuana products and accessories to adults 21 or over. Instead of creating a new constitutional amendment, the ballot initiative amends Florida’s existing medical marijuana amendment (Article X, Section 29) to include adult personal use of marijuana. The initiative does not, however, provide many details about the proposed adult-use program . Notably, it adds new definitions, creates possession limitations, and allows the Florida legislature to create new licenses in addition to MMTC licenses. It then defers to the Florida Legislature, giving it authority to enact laws consistent with the amendment, and leaves regulatory oversight with the Department of Health. The simplistic approach is likely by design – intended to pass scrutiny by the Florida Supreme Court.
B. Ballot Initiative Process in Florida
In Florida, citizens have the right to propose amendments to the Florida Constitution through an initiative petition process. Sponsors of an initiative must obtain a specific number of signed petitions by registered Florida voters. Once 25% of the total requisite number of verified signatures is obtained, the state’s Attorney General will petition the Florida Supreme Court for an advisory opinion as to whether the text of the proposed amendment complies with applicable Florida law. If the initiative survives judicial scrutiny and obtains the requisite signatures, it is then placed on the ballot as a proposed constitutional amendment requiring approval by a supermajority (i.e., 60%) vote.
C. Florida Supreme Court Will Apply a New Standard When Reviewing the Ballot Initiative
The Florida Supreme Court has traditionally reviewed a ballot initiative to ensure it (1) contains a single subject, and (2) is clear and unambiguous, so that voters will not be misled. The last two proposed adult-use ballots were struck down because the Florida Supreme Court concluded that their ballot summaries were “affirmatively misleading.” The current ballot initiative does not appear to suffer from the same flaws as its predecessor initiatives. However, the majority of the Florida Legislature has a disdain for citizen-led ballot initiatives and has passed laws over the years making it more difficult for initiatives to make it on the ballot. In 2020, Senate Bill 1794 expanded, among other things, the Florida Supreme Court’s review of initiative petitions to include “whether the proposed amendment is facially invalid under the United States Constitution.” This new standard, which has yet to be applied by the Court, will likely be triggered during review if marijuana remains federally illegal at the time.
D. Impact of Adult-Use on Florida’s Existing Marijuana Market
If the adult-use ballot initiative passes, the constitutional amendment will be effective in mid-2025. By that time, Florida’s medical marijuana program will already be a multi-billion dollar industry consisting of over 1 million registered patients. Legalization in Florida through the adult-use ballot initiative will create one of the largest state-legal marijuana markets (measured by sales) in the country. With over 20 million residents and more than 100 million annual visitors, the number of potential customers in Florida will expand exponentially. Additionally, if Florida is the first state to legalize adult-use marijuana in the southeast region at the time, expect significant sales to occur in northern Florida where the state borders Georgia and Alabama. While many details of the adult-use program are yet to be determined, one thing is certain: existing MMTCs conducting sales at that time will reap the financial rewards of expanding the state’s marijuana market through this ballot initiative.
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