Make It Legal Florida gathered enough signatures last year to trigger a judicial review of its ballot initiative to legalize adult-use cannabis in the state, but new laws recently enacted by Gov. Ron DeSantis could present new legislative hurdles for the campaign as it continues its efforts to secure a spot on the 2022 ballot.

Make It Legal Florida, which is backed by cannabis industry stakeholders such as MedMen and Parallel (formerly known as Surterra Wellness), launched efforts last fall to qualify an initiative for the 2020 ballot that would allow adults 21 and older to purchase cannabis at the state’s existing medical cannabis dispensaries (called medical marijuana treatment centers or MMTCs in Florida).

As the Feb. 1 deadline for signatures loomed, Make It Legal Florida and Regulate Florida, which tried to bring a competing adult-use legalization initiative to the state’s 2020 ballot, fell short on signatures, and both campaigns ultimately refocused their efforts on the 2022 election.

Meanwhile, DeSantis signed two key pieces of legislation into law that could present significant obstacles to not only these petitions, but all ballot initiatives in the state, according to Matthew Ginder, partner in Greenspoon Marder’s Cannabis Law Practice Group.

All eyes are now on the Florida Supreme Court as it considers whether to approve Make It Legal Florida’s ballot initiative, as it could set a precedent of what’s to come.

“There’s been some effort by the legislature to make it more difficult for ballot initiatives to make it to the ballot, and they’ve done that through passing bills making it more difficult to collect signatures,” Ginder told Cannabis Business Times.

House Bill 5, which passed during Florida’s 2019 legislative session, changed compensation requirements for petitioners, potentially making it more costly for initiative sponsors to obtain signatures, Ginder said.

In addition, during the state’s 2020 legislative session, the legislature passed Senate Bill 1794, which created a new set of hurdles for sponsors to place initiatives on the state’s ballot.

S.B. 1794 increases the number of verified signatures required to trigger judicial review. Prior to the legislation, an initiative with 10% of the total number of required signatures would trigger a review. Under the new law, 25% of the total signatures are required.

“It puts you further down the road before finding out whether that ballot initiative is in fact valid and can move forward to making the ballot,” Ginder said.

In addition, before the law change, the Supervisors of Elections had 30 days to verify the signatures and seek judicial review on ballot initiatives that met the signature threshold. S.B. 1794 now extends that deadline to 60 days.

“These seem to be efforts to run out the clock on these sponsors who are trying to get [their] petition on the ballot,” Ginder said.

The provision of S.B. 1794 that could threaten Make It Legal Florida’s initiative the most, however, is one that asks the Florida Supreme Court to determine whether a ballot initiative is valid under the U.S. Constitution.

“This may have implications for an adult-use initiative because I can see a party—the attorney general or any other interested party—making the argument that it should not be on the ballot because cannabis remains federally illegal.,” Ginder said. “This could be a significant hurdle.”

The Florida Supreme Court heard oral arguments May 6, Ginder said, and, sure enough, the attorney general’s office made that argument. The attorney general argued that the ballot summary that will be presented to voters under Make It Legal Florida’s initiative is misleading because although Florida law permits adult-use cannabis legalization, federal law does not, and federal law would supersede state law, making the ballot summary moot.

“That really is the key argument in this case, the key issue,” Ginder said. “That will be an unprecedented issue because that’s never been a requirement for Supreme Court review before.”

While the court’s ultimate decision remains to be seen, the outcome will likely set a precedent in the state that could have far-reaching consequences on adult-use legalization efforts.

“I think [the new laws] ultimately raise the stakes on whether Make It Legal’s ballot initiative passes Supreme Court review,” Ginder said. “If it doesn’t pass Supreme Court review and they have to start over, then all of these new laws making it more difficult to get it on the ballot will be triggered.”

Make It Legal Florida’s campaign could also be derailed by another pending threat: Florigrown’s medical cannabis case, which has also been taken up by the Florida Supreme Court.

Tampa-based Florigrown sued the state after being denied a business license in a case that underscores the tension between Florida’s 2016 voter-approved medical cannabis legalization measure and the legislature’s attempts to implement that measure. In short, the case challenges the constitutionality of Florida’s vertically integrated licensing structure and its licensing cap, and the ruling could have significant ramifications on the state’s medical cannabis program, which is ultimately the basis of Make It Legal Florida’s proposed ballot initiative.

“Their ballot initiative incorporates our medical marijuana laws on the licensing structure side, [so the Florigrown case] even has ramifications, potentially, on this amendment and what the licensing structure would be if this amendment gets on the ballot and passes,” Ginder said.

In any case, if the Supreme Court finds that Make It Legal Florida—or any other adult-use cannabis legalization campaign, for that matter—does not meet the new standards to make the ballot, cannabis policy reform in Florida will face a new set of challenges, Ginder said.

For one thing, a legislative effort may be legalization’s only chance at that point.

“I think it’s going to be interesting to see the efforts made at the legislative level for adult-use reform,” Ginder said. “Historically, I would say there was no chance, but [with] cannabis reform and adult-use legalization, there’s a more compelling argument to be made post-COVID-19 because of the direct benefits to the state between jobs and tax revenue. Those are going to be two crucial things that are needed at the state level, … so there’s going to be a good compelling argument to create tax revenue, and one of those ways could be through adult-use [legalization]."

A growing percentage of cannabis is failing microbial testing in Colorado, and the problem could be stemming from easily overlooked issues in growers’ cultivation facilities, according to Carly Bader, a microbiology analyst for AgriScience Labs, one of the first state-licensed testing facilities.

An annual report from Colorado’s Marijuana Enforcement Division recently revealed that 86.35% of adult-use cannabis flower and trim, as well as 87.30% of medical cannabis flower and trim, passed microbial testing in 2019, meaning that nearly 15% failed for concentrations of yeast and mold that are over the legal limit.

While these numbers hold steady with stats from 2018, when roughly 85% of cannabis flower and trim made the grade, according to AgriScience CEO Frank Traylor, the pass rate has been on a slight decline; Traylor says 2017 saw a pass rate just below 90%, while over 90% of cannabis passed microbial testing in 2016 and 2015.

“It’s been floating between a 10% to 15% failure rate …  across our state, and of course everyone is required to do microbial testing, so it’s a broad sample,” Traylor tells Cannabis Business Times.

“This is a really broad sampling—that’s one of the main points,” Bader adds. “This idea of one general number for this industry as a whole is really hard to dissect, but the trends can indicate … significant changes in testing, changes in law or changes in technology.”

Colorado regulations mandate that labs test for yeast and mold in one test, although AgriScience labs can speciate the colonies for its clients upon request.

“At AgriScience, we definitely communicate a lot with the clients about what we see,” Bader says. “We do dig deeper for our clients, but this isn’t something that is regulated, … [so] we don’t have any data from [regulators] on those numbers.”

When a sample fails microbial testing, cultivators do have the option to re-test, Bader says. They must send another small sample from the same batch to two labs, and must pass both tests in order to have the product certified for sale. If either test fails, the product cannot be sold.

“When people re-test and we get that same exact number or something very close, it makes me confident in my testing as well as what we can do for that grow,” Bader says. “We try to communicate with our clients those results and then … possibly [go] out to help them deal with that problem. If it is there, yeast and mold only grow, and you’re only going to have larger and larger contamination if you don’t address that problem.”

Pamela Reach, CEO of Rare Dankness, a vertically integrated cannabis operator in Colorado, says microbial issues are not unusual for cannabis crops in the spring, when the transition from cold, dry, wintery conditions into warmer weather creates optimal conditions for powdery mildew.

“Very rarely do we fail, but everybody’s [cannabis] fails sometimes—it’s just the nature of the game,” Reach tells Cannabis Business Times.

Bader’s experience with helping AgriScience’s clients identify the source of their microbial problem has highlighted some common, usually easy-to-address issues in the industry. For example, she routinely sees yeast and mold growth inside humidifiers, especially those with open drip trays.

“Some people even leave their watering buckets open, unsealed,” Bader says. “They don’t really see the problem there, but it’s something that I see very quickly.”

Yeast and mold issues can also extend beyond cultivators’ facilities and into dispensaries, Bader adds, which is a problem that came to light last year when random microbial and pesticide testing in Denver turned up an 80% failure rate.

“In Colorado, we have a 10,000-colony forming unit,” Bader says. “If I have a sample that comes in at 9,000 at my level [before it’s] in the dispensary, that doesn’t mean that the yeast and mold aren’t going to continue to grow and possibly be over 10,000 when it does reach the consumer.”

To combat this problem, dispensaries should ensure that budtenders follow all personal hygiene and sanitation protocols to keep jars and high-touch surfaces clean and free of possible contaminants. AgiScience Labs often tests dispensary clients’ surfaces for microbial growth to help them understand where they can improve their practices to decrease the risk of yeast and mold in their stores.

“Nobody wants to throw away product that very well could’ve been sold and profited from,” Bader says. “It’s a lot of time consumption and financial effort for every pound. When they pass, it’s great, [but] we consult with our clients when they fail, and a lot of them appreciate the information.”

This year presents new testing challenges for Colorado’s cannabis industry, she adds, as the state rolled out required heavy metals testing on Jan. 1. New regulations mean that AgriScience must constantly evolve its practices and ensure its equipment can meet new testing standards, which isn’t always easy.

“This year, it’s been concentrates that we are additionally testing, and that’s hard on our equipment,” Bader says. “Putting these sticky concentrates through really sensitive equipment can be trying on us, [but] we’re doing our best to quantify and do this properly.”

Cultivators must also rise to these new challenges, and Bader says many of AgriScience’s clients submit samples for R&D testing prior to new regulations taking effect to ensure that their products are compliant.

Heavy metals testing has been particularly challenging for some growers, she adds, as heavy metals occur naturally in the soil and water in some areas of the state. Bader has also seen cannabis fail heavy metals testing due to cultivators using fish media in their soil.

“Fish is great—people use aquatic systems for aquaponics,” she says. “But ground-up fish or some of this bone meal [have] different heavy metals due to the fact that fish are eating smaller fish and they’re at the bottom of that food chain. These are things you don’t know until you try.”

While much of AgriScience’s work is a balancing act between educating businesses and keeping consumers safe, the company has amassed a storehouse of data since its launch in 2014, which it hopes will continue to move the industry forward as it evolves.

“There’s no academic research going on about yeast and mold that can contaminate crops like this,” Bader says. “It’s really unprecedented work that is going to be a huge part of our society."