REGIONAL— Five Minnesota plaintiffs are seeking a declaratory judgment in a Ramsey County Court that could clear the way for individuals who grow cannabis at home to sell their product to the public without a license.
The plaintiffs, who have named Attorney General Keith Ellison and Charlene Briner, interim director of the state’s Office of Cannabis Management, as defendants, are citing a provision of the Minnesota Constitution that allows home growers to sell their products directly to the public without a license.
Article 13, Sec. 7 of the state’s constitution states: “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”
That provision of the constitution was adopted by the state’s voters on Nov. 6, 1916, and has remained in place ever since. A subsequent 1918 advisory opinion by then-Assistant Attorney General James E. Markham, confirmed that the constitutional provision had rendered “nugatory” a broad state statute that seemingly required a local milk producer to obtain a license to sell his products to a distributor within the limits of a city. “Nugatory” is defined as “useless, futile, or of no value.”
The opinion noted that the constitutional exception applied only to the milk producer himself, but not the distributor of the milk who was buying the product for resale to others.
The plaintiffs claim they are legally growing cannabis on their property under the state law enacted in 2023 and would like to sell excess production directly to the public to help offset the costs of their growing operations. The plaintiffs maintain that their grow operations are limited to the number of plants allowed to be grown at home under state law.
“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,” said attorney Jeffrey O’Brien, who is representing the plaintiffs.
The plaintiffs allege that they have sought an advisory opinion from the Office of Cannabis Management but were told that the office does not issue advisory or declaratory opinions. Without such an opinion, the plaintiffs say they fear that exercising their rights under the state constitution could leave them subject to criminal prosecution for selling marijuana without a license.
“Defendant’s inaction has chilled the exercise of plaintiff’s constitutional right to sell the product of their cultivation,” reads the lawsuit.
The court’s decision in the case, should it issue one, could have significant ramifications on Minnesota’s cannabis market and the state’s ability to regulate and tax it. Under the new cannabis law in Minnesota, the sale of the product is limited to licensed retail distributors and those licenses likely won’t be available for at least another year. If potentially thousands of Minnesotans could grow cannabis on their premises for direct sale to the public, potentially within months, that could significantly impact investment decisions related to larger grow operations and retail establishments as envisioned by the 2023 state law.
As reported by MinnPost, legal direct sale from growers to the public is a scenario that some legalizations advocates have long envisioned. “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.
O’Brien said his clients’ requests are being reasonable. “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. 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.”
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.
The state court of appeals disagreed, however, finding that because marijuana was illegal and because previous courts had upheld those statutes, the constitutional provision did not apply. With home growing of cannabis now legal in the state, that appellate reasoning would seem out of date.
In other cases, however, the courts have found that the sale of some otherwise legal farm products might seem able to evade the licensing requirement, state health and safety laws can sometimes be used to prohibit the sale of farm products, such as raw milk, considered unsafe.
MinnPost contributed reporting for this story.