Change is Afoot for the Cannabis Landscape in Florida
As federal law and opinion surrounding cannabis and its derivative products is changing, the Florida Supreme Court has recently approved the wording of the proposed “Adult Personal Use of Marijuana” ballot initiative that would amend article X, section 29 of the Florida Constitution to legalize the use of recreational marijuana. Specifically, Amendment 3 would allow for, with certain limitations, “adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption by smoking, ingestion, or otherwise.” It also would allow for Medical Marijuana Treatment Centers, among other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute marijuana products and accessories for such recreational use.
Justice Jamie Grosshans, who authored the 5-2 decision, found that the proposal met the requirements under the court’s limited review. “Our role is narrow—we assess only whether the amendment conforms to the constitutionally mandated single-subject requirement, whether the ballot summary meets the statutory standard for clarity, and whether the amendment is facially invalid under the federal constitution. In light of those limited considerations, we approve the proposed amendment for placement on the ballot.” Grosshans wrote.
Though Amendment 3 was approved, it was met with significant disagreement. For example, Justices Sasso and Francis, in disagreeing with the majority opinion, wrote in separate dissents that Amendment 3 failed to meet specific requirements. Particularly, for a ballot initiative such as Amendment 3 to be approved it must conform to the constitutionally mandated single-subject requirement, meet the statutory standard for clarity, and be facially valid under the federal constitution. Justice Sasso argued Amendment 3 was misleading because (1) the Amendment does not “allow” or otherwise accord some specific right for other entity sales absent the Florida Legislature deciding “to provide for the licensure of ‘other’ entities first”; and (2) “[a] state has no power to authorize its residents to participate in conduct that would constitute a federal crime.” In agreeing that Amendment 3 was misleading, Justice Francis also argued it violated the single-subject requirement.
Despite these dissenting opinions, however, Amendment 3 is now set to appear on the November 2024 ballot. In order to become law, it will need 60 percent support from Florida voters.
In addition to Amendment 3, in an effort to amend Florida’s State Hemp Program (s. 581.217, F.S.), the Florida legislature recently passed SB 1698. Though this bill is currently awaiting signature by Governor Ron DeSantis, if enacted, the manufacture, delivery, holding, offering for sale, distribution, or sale of hemp extracts (i.e., hemp products intended for ingestion or inhalation) containing delta-8 tetrahydrocannabinol (delta-8 THC), among other barred ingredients, would be prohibited. Additionally, hemp extract products must contain no more than a 0.3 percent total delta-9 tetrahydrocannabinol (delta-9 THC) concentration, or if sold at retail, contain no more than, on a wet-weight basis, the lesser of 0.3 percent total delta-9 THC concentration or 5 milligrams per serving and 50 milligrams per container.
If signed by the Governor, this legislation expands the definition of “attractive to children,” incorporating new criteria alongside those already established under law. This includes any products:
- Manufactured in the shape of or packaged in containers displaying humans, cartoons, animals, toys or other elements designed to appeal to children,
- Manufactured in a form or packaged in a container that bears any reasonable resemblance to an existing candy or snack product familiar to the public,
- Manufactured in a form or packaged in a container that bears a reasonable resemblance to branded food products that could be mistaken for the original, especially by children, or
- Containing any color additives.
Moreover, if signed, SB 1698 will clarify that hemp extract may only be sold to or procured by a party with proper permitting, as applicable. It will also require an event organizer to verify business permitting, verify that each business is only selling hemp products from an approved source, and provide a list of the businesses selling or marketing hemp extract products at the event.
Once the Governor receives the legislation officially, he will have 15 days to act upon it. If he does sign it, the changes noted above become effective October 1st of this year.
In light of the various changes occurring in state and federal law and regulations surrounding cannabis and its derivative products, it is imperative to assess and be prepared for any potential impact. Buchanan’s experienced and dedicated Cannabis Practice Group and Government Relations & Public Policy Group are poised to assist individuals and entities impacted by these developments.