Florida Attorney General Fights Adult Use Cannabis

Florida's attorney general has urged the state Supreme Court to reject an effort to legalize adult-use marijuana via a constitutional amendment, saying in a brief that the proposed ballot initiative misleads voters in multiple ways.

"The Adult Personal Use of Marijuana amendment asks voters to make consequential changes to Florida's Constitution yet is not honest with them about what those changes would be," Monday's brief said.

Specifically, Ashley Moody, the Republican attorney general for the state, said the initiative deceives the Florida electorate by alleging that it would legalize cannabis for adult use, even though the drug would remain federally illegal under the Controlled Substances Act.

"[V]oters need clear guidance before being asked to lift state-law penalties for the possession of a substance that would subject users to devastating criminal liability under federal law," the brief said. "And the rampant misinformation in the press and being peddled by the sponsor of this initiative about its effects makes clarity all the more pivotal."

The brief also states that the initiative misleads voters by claiming that it would allow new players to enter the state-regulated marijuana trade. The attorney general countered that, under the legalization proposal as drafted, only companies which are currently licensed in the medical marijuana market would be able to do so.

"At most, [the proposed amendment] would preserve the Legislature's power to issue additional business licenses," the brief said.

The attorney general also said the ballot summary at issue dupes voters by misconstruing a section that would enact a new, affirmative ban on personal possession of more than three ounces of marijuana.

"If the amendment passed, not even the Legislature would be able to clear the way for possession of greater amounts of marijuana," the brief said. "Were voters warned that the amendment would restrict marijuana possession in this way — effectively banning most or all marijuana cultivation — they might reconsider their support for the initiative."

Moody filed her petition to block the ballot measure in May, marking the second time the Florida Attorney General's Office has attempted to block a measure to allow adults 21 years and older to consume cannabis for recreational purposes.

In 2021, the Florida Supreme Court killed two previous efforts to put a recreational cannabis legalization question before voters on the grounds that they misled voters.

The initiative under review would amend the state constitution to legalize the recreational use of cannabis. Currently, medical dispensaries licensed in the state are authorized to sell smokable and other consumable cannabis products to registered patients.

Support for the ballot initiative has come primarily from Trulieve, the state's largest medical cannabis company, which has poured approximately $39 million into the political action committee Smart & Safe Florida, according to documents collected by Florida's Department of State.

The effort surpassed the number of signatures it needed to get it in front of voters in 2024, after the state validated more than 965,000 signatures submitted by measure proponents.

Steven J. Vancore, a spokesperson for Smart & Safe, told Law360 on Tuesday that the campaign disagreed with the attorney general's analysis of the ballot measure.

"We believe the language as written clearly complies with the requirements of the Constitution," Vancore said in an email. "We look forward to bringing this matter to the Florida Supreme Court and are confident that the court will conclude that there is no lawful basis to set aside the ballot initiative."

Moody's brief was joined by two others in opposition to the proposed amendment, also filed Monday, from the Florida Chamber of Commerce and from the Drug Free America Foundation.

In its brief, the Florida Chamber of Commerce argued that the proposed amendment violated the state's single-subject requirement of constitutional amendments, which holds that the measure cannot ask voters to weigh in on more than one topic with a single vote.

Specifically, the group, representing Sunshine State business interests, said the proposal unlawfully asks voters to consider whether to both decriminalize and commercialize adult-use cannabis in the same question.

The Drug Free America Foundation, a non-governmental organization which opposes cannabis legalization and advocates for drug abstinence, said the proposed amendment was "facially invalid … because it conflicts with federal law."

Vancore, the spokesperson for the legalization campaign, said, "This important issue should be entrusted to the citizens of Florida — over a million of whom have already signed the Smart & Safe Florida petition saying they support it — to decide for themselves through democratic choice."

The Office of Attorney General is represented by Ashley Moody, Henry C. Whitaker, Jeffrey Paul DeSousa and Daniel W. Bell.

Smart & Safe Florida is represented by Glenn Burhans Jr. of Stearns Weaver Miller.

Drug Free America Foundation is represented by Jeremy D. Bailie of Weber Crabb & Wein PA.

Florida Chamber of Commerce is represented by Alan Lawson, Jason Gonzalez and Jessica Slatten of Lawson Huck Gonzalez PLLC.

The case is captioned Advisory Opinion to the Attorney General Re: Adult Personal Use of Marijuana, case no. SC2023-0682, in the Supreme Court of Florida.