Florida Attorney General Attacks Trulieve CEO, Lays Out 4-Part Argument Against Cannabis Ballot Measure for Supreme Court

Florida Attorney General Ashley Moody is calling a 2024 ballot initiative to legalize adult-use cannabis misleading to voters in her attempt to kill it via a judicial review by the state’s Supreme Court.

The state’s top lawyer submitted a 49-page brief June 26, urging the court’s justices to rule the legalization proposal unfit for the ballot. As required, Moody submitted Smart & Safe Florida’s citizen-led petition to the state’s Supreme Court on May 15, where, like other ballot initiatives, it must now survive the judicial test of single-subject requirements and whether the ballot language is clear and unambiguous.

RELATED: Florida Attorney General Says 2024 Cannabis Ballot Measure Fails Language Test

While David Bellamy of the Bellamy Brothers music duo chairs the Smart & Safe Florida political action committee, Tallahassee-based multistate cannabis operator Trulieve represents the primary financial muscle behind the campaign with more than $39 million in contributions so far, according to the Florida Department of State.

In her brief submitted this week, not only did Moody lay out a four-part argument on why she believes the proposal does not live up to those standards, but the attorney general also accused Trulieve CEO Kim Rivers of publicly misrepresenting the ballot proposal in a June 1 press release by the company.

“Our investment demonstrates our firm belief that Floridians are ready to experience the freedom to use cannabis for personal consumption; a freedom which is currently enjoyed by more than half of America’s adults,” Rivers said. “With over 965,000 validated signatures from nearly every part of our state, it is clear these voters share that belief.”

Moody argued that Rivers' comments are misleading and have “made things worse” because “none of that is true.”

In addition, Moody wrote that "the rampant misinformation ... being peddled by the sponsor of this initiative about its effects makes clarity all the more pivotal."

Editor's note: Kim Rivers said she does not feel attacked by the attorney general's remarks.

“The court should hold that the Adult Personal Use of Marijuana initiative is invalid because its ballot summary misleads voters in several key respects,” Moody wrote.

Moody’s four points of argument include:

1. The ballot summary misleadingly suggests that the amendment would “allow” recreational marijuana, when in fact the drug would remain criminal under federal law;
2. The ballot summary misleadingly suggests that it would authorize “other state licensed entities” beyond [Medical Marijuana Treatment Centers] to cultivate and distribute marijuana;
3. The ballot summary misleadingly suggests that the amendment “limits” the scope of the immunity for possession when it actually outright bans possession of more than 3 ounces; and
4. The ballot summary fails to advise voters that the amendment would leave MMTCs unregulated with respect to recreational marijuana.
   

Although legalization advocates have said the 2024 ballot measure’s secret is in its simplicity, opponents, like Moody, are eying the ballot summary, which includes provisions to: 1.) Allow adults 21 years and older to purchase, possess and use cannabis; 2.) Allow MMTCs and other licensed entities to operate in the program; and 3.) Establish possession limits for personal use.

Moody’s First Point

While the Smart & Safe Florida proposal’s ballot summary provides that adults 21 years and older would be allowed to purchase, possess and use cannabis in Florida, Moody argues that the plant remains prohibited as a Schedule I substance under federal law (the Controlled Substances Act).

“Indeed, every individual who possesses marijuana under the scheme provided by the proposed amendment would become a federal criminal,” Moody wrote. “The little the summary does say about federal law is inadequate to dispel the misimpression created by the word ‘allows,’ and instead suggests that at least some subset of marijuana use in Florida would be lawful under federal law.”

Moody argued that no state has the power to authorize its residents to participate in conduct that would constitute a federal crime. Still, she did not mention Florida’s medical program of more than 828,000 patients also deviates from federal law, nor did she mention the 23 states that have already legalized adult-use cannabis in the U.S. without federal repercussions.

The Florida state constitution has no power to “allow” activity that is independently proscribed by federal law, “Yet reasonable voters will be misled by the ballot summary that marijuana use will be lawful in Florida post-amendment,” Moody wrote.

This point, Moody argued, was the conclusion of the Supreme Court when the justices ruled in 5-2 decisions that a pair of previous attempts to legalize adult-use cannabis were misleading to voters and insufficient to appear on the November 2022 ballot.

Moody’s Second Point

Next, Moody argued, the Smart & Safe Florida ballot summary is misleading because it indicates additional entities beyond the state’s current medical cannabis licensees would be able to participate in a regulated adult-use program.

The proposed constitutional amendment does recognize the state Legislature’s authority to empower more licensed businesses to enter the state’s cannabis market, she wrote.

“But the proposed amendment does not itself authorize any existing or new licensed entities or require the Legislature to provide for additional licensure,” Moody wrote. “The ballot summary, however, suggests that the amendment would ‘allow Medical Marijuana Treatment Centers, and other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute’ marijuana.”

The amendment itself “allows” no such thing, Moody argued, but rather it merely declines to disturb the Legislature’s preexisting authority to license additional entities.

“The implication that the amendment would provide for ‘other state licensed entities’ thus misleads voters into thinking that the amendment would address [criticisms over a monopolized market], when really it would not address the domination of the marijuana market by a select few MMTCs, including—tellingly—the sponsor, Trulieve,” she wrote.

Moody’s Third Point

One key provision of the proposed 2024 constitutional amendment is the notion that an individual’s possession of cannabis for personal use shall not exceed 3 ounces of dried flower or 5 grams of concentrate.

Moody argued that this misleads voters because it would outlaw the possession of more than 3 ounces of cannabis.

“As a result, the Legislature under the amendment would have no power to permit Floridians to possess more than 3 ounces of marijuana, with the practical effect that the proposed amendment bans all or most marijuana home cultivation by individuals,” Moody wrote.

With respect to home cultivation’s omission from the ballot language—as well as a social equity program and social justice initiatives—Rivers and other legalization proponents have publicly stated that the 2024 proposal was written in a simplistic manner that could survive judicial review. The complex language of previous adult-use legalization attempts is what led to their demise.

To this end, Moody argued in her brief that the ballot summary does not say enough to accurately tell voters of the effect regarding possession limits proposed. Placing an outer bound on the scope of immunity would limit possession in a way that the Legislature could not expand, she wrote.

“By limiting an individual’s personal possession of marijuana to 3 ounces, the amendment aids corporate interests like Trulieve in entrenching their monopoly of the marijuana market,” Moody wrote. “A ban on possessing more than 3 ounces will make it difficult, if not impossible, for individuals to cultivate marijuana for their own consumption and for the consumption of friends and family, forcing those users into the retail marketplace.

“The ballot summary does not clearly convey to the voters that the amendment would, in this respect, reinforce the stranglehold MMTCs have on the marijuana market in Florida.”

Moody’s Fourth Point

Finally, Moody argued in her brief that existing medical operators would go “unregulated” by the Department of Health.

“At best, the proposed amendment is ambiguous about the department’s regulatory authority in that new area; at worst, the department would lack any such authority,” she wrote. “Nor would the amendment grant any other regulatory agency authority to oversee MMTCs in their recreational businesses.”

In the 2024 ballot proposal, part of the duties of the Health Department listed includes promulgating regulatory procedures for the registration of MMTCs that include “the issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection, and safety,” according to the initiative’s language. 

Moody argued that voters familiar with the state’s existing medical law would assume that the proposed amendment would extend the Health Department’s regulatory authority to adult-use cannabis, but “it does not,” she wrote.

Regardless of the Health Department’s authority, Moody argued the proposed amendment would leave adult-use cannabis unregulated for “at least some substantial period” because the amendment would not require legislative or regulatory implementation of new provisions.

“The Legislature and department may well do their best to head off this problem by implementing a regulatory regime for recreational marijuana as quickly as they can, but that is no small ask,” Moody wrote. “In sum, it could take years for the Legislature and Department of Health to implement a comprehensive regulatory regime for the recreational use of marijuana, and—unlike the Medical Marijuana Amendment—the amendment here does nothing to guarantee such a regime will be in place when it takes effect.”

The Safe & Smart Florida ballot proposal would become effective six months after a 60% approval by voters.

In order to allow the Department of Health “sufficient” time after passage, it would require certain regulations to be promulgated by the department no later than six months after the effective date, according to the initiative’s language.

Join us this year at the Paris Las Vegas Hotel & Casino for Cannabis Conference, the leading education and expo event for plant-touching businesses.