Minnesota Governor Dismisses Claims That State Constitution Lets People Sell Homegrown Marijuana Without A License Following Legalization

The governor of Minnesota is pushing back against a legal argument that the state Constitution allows people to sell their homegrown marijuana without obtaining a license, stating that it was “not our intention” to authorize that type of commerce under the legalization legislation he signed into law this year.

While adults 21 and older may now possess, cultivate and gift cannabis under the law that took effect at the beginning of the month, retailers (beside those operated by tribes) are not expected to open for at least another year. As the law was being drafted, however, some advocates said that Section 7, Article XIII of the Minnesota Constitution gave farmers another option to begin marijuana sales outside of the licensing scheme.

That section, enacted in 1906 after a farmer was penalized for selling melons out of his wagon, states that “any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license.”

It doesn’t specify what kinds of products may be sold—and now that cannabis is legal, certain advocates are making the case that the policy is applicable to homegrown marijuana. Others want lawmakers to revise the new legalization law so that it explicitly protects the rights of farmers to sell their own cannabis without a license.

Gov. Tim Walz (D), a strong proponent of the state’s legalization law, said during a press conference last week that he and lawmakers didn’t intend to create that alternative commerce pathway, though he didn’t necessarily speak to the merits of the constitutional argument. He said he hasn’t had any “substance conversations” with legislative experts or commerce officials about the possibility.

“Look, I think on the cannabis piece of this, just like every other piece of legislation, certainly around things like alcohol, these are ever-evolving,” the governor said. “And I’ve said that I think there’s a strong need—we’ll come back. We’ll revisit these things year after year, probably for decades to come. But that was never our intention to do that.”

David Schultz, a political science professor at Hamline University, said in an op-ed for MinnPost earlier this month that he doesn’t believe the constitutional amendment provides the type of sweeping protections that some advocates are claiming it does. He pointed to a 1998 Minnesota Court of Appeals that has already determined that the state could regulate and prohibit the sale of farm products as it sees fit, specifically asserting that the government had a right to ban the sale of homegrown marijuana in the interest of public safety.

“The state government in 1906 could not have foreseen or predicted a society many decades later that suffers as a result of the abuses and addictions of drugs,” the court said. “Therefore, the prohibition on the sale and possession of marijuana as a controlled substance is clearly within the state’s police powers to protect the health and general welfare of the public.”

At the time, the state attorney general also weighed in on the policy, writing in an opinion:

“Minn. Const, art. XIII, § 7 was never meant to prohibit legislation regulating the safety of farm products. It simply limits the ability of state and local governments to license the sales of farm products. The Minnesota controlled substance statutes, on the other hand, are criminal prohibitions enforcing the State’s constitutional obligation to protect its people. They are not a licensing scheme. Even if the controlled substance statutes collaterally affect the ability of a farmer to market a crop—they are a reasonable accommodation in the interest of public health. A farmer has no more right to produce and sell dangerous products under Minn. Const, art. XIII, § 7 than he does to yell ‘fire’ in a crowded theater under the First Amendment.”

But Minnesota NORML said that another case concerning the constitutional amendment, heard in the state Supreme Court in 2005, does leave open the possibility that marijuana could be lawfully sold now that it’s legal to grow. Justices ruled that a person selling meat produced on their farm could sell it without a license, but the commerce is still subject to “substantive regulation related to the production or sale of their farm products.”

With respect to marijuana, there are certain regulations that apply, including age restrictions and possession limits. But attorney Thomas Gallagher says that, assuming those basic rules are followed, a person charged with selling their own cannabis could theoretically use the Constitution as a defense, though neither he nor Minnesota NORML are recommending that a farmer try to test the law.

Instead, they are pushing for the legislature to take up the issue next session, urging lawmakers to clarify the law and codify the right of adults to sell their homegrown marijuana without a license.

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As this debate plays out, Minnesota officials are working to expeditiously implement regulations to begin issuing cannabis business licenses. In the interim, people have flocked to the limited number of tribally operated marijuana shops that are permitted under the legalization law. One of those tribes, the Red Lake Band of Chippewa Indians, says it is working to expand, in part by opening a cannabis “food truck” to sell on tribal lands in different areas of the state.

Former Minnesota Gov. Jesse Ventura also said recently that he wants to get in on the action, too, and become the “first major politician in America” to have his face on a marijuana brand.

Minnesota’s legalization law further created the Office of Cannabis Management (OCM), which launched last month. It will be the primary regulatory body that will oversee the market and for which the governor is actively seeking an executive director, who he expects to announce in early September.

Another body that’s been instituted is the Cannabis Expungement Board, which will facilitate record sealing for people with eligible marijuana convictions on their records. The review process for eligible cases commenced this month.

Even before the governor signed the reform bill, the state launched a website that serves as a hub for information about the new law. Officials have also already started soliciting vendors to help build a licensing system for recreational marijuana businesses.

Walz has also sharply criticized Republicans who’ve asked for a special session to address what they describe as “loopholes” in the law concerning youth possession and public consumption. And he’s welcomed adults in neighboring Iowa to visit and participate in the market.

Separately, another Minnesota law also took effect this month that legalizes drug paraphernalia possession, syringe services, controlled substances residue and testing.

Also, under another bill that the governor signed into law this session, a Minnesota government psychedelics task force is actively being built out to prepare the state for the possible legalization of substances like psilocybin and ibogaine.

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Photo courtesy of Chris Wallis // Side Pocket Images.