Does the state constitution allow Minnesotans to sell homegrown weed?
MINNEAPOLIS – Minnesotans likely won't see a recreational marijuana dispensary in their communities until early 2025. But some argue they can sell homegrown weed right now without a state license and well before retail sales regulated by the state, thanks to a provision in the Minnesota Constitution.
Section 7 of Article XIII states that "any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license."
Criminal defense attorney Thomas Gallagher, who sits on the board of Minnesota NORML, a cannabis advocacy group, believes that language gives Minnesotans the green light to sell some of their homegrown plants.
The state law allows adults 21 and older to grow up to 2 pounds of marijuana flower as of Aug. 1, one of the first elements to take effect after the legislature approved the change earlier this year.
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"It would only work for people, individuals not companies," Gallagher said. "It would only work for growing it in your backyard or your on farm, not on somebody else's. But under those conditions, then you have a constitutional right to sell it."
But not everyone agrees with this interpretation. Tanner Berris, president of the Minnesota Cannabis College, a nonprofit that works to train people who want to get into the fledging industry, pointed to a 1998 Minnesota Appeals Court decision that said "nothing suggests that this privilege, intended to help farmers bring their crops to market, creates for farmers a fundamental liberty to sell farm products."
The statute explicitly says Minnesotans can give away, but not sell, up to 2 ounces to someone 21 and older. Retail dispensaries and other cannabis businesses require a state license to operate, and they will be regulated under a new Office of Cannabis Management, which isn't fully up and running yet.
He believes there would be many benefits to allowing homegrowers to sell without a license, but thinks the law as it stands is clear on the matter. He urges Minnesotans who want it changed to lobby their lawmakers.
"We've had to tell people cannabis is legal-ish. Cannabis is legal -- you can possess it, you can grow it, you can gift it to people, but it's not an unregulated market," Berris said. "We still have rules around the possession and sale of cannabis. And just because we have a provision in our constitution that allows people to peddle goods doesn't make those regulations null and void."
Gallagher hopes the legislature will come back next session and update the law to include language that would provide clear guidance on how Minnesotans could sell some of their homegrown plants. He called it a "low-volume" situation that would not threaten the licensing system the state seeks to implement.
"What we're advocating is that the Minnesota legislature fill the statutory framework that honors the letter and the spirit of the constitution of Minnesota," he said.
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He highlighted a separate case where two farmers were found guilty for selling meat without a license and appealed their conviction. The Minnesota Supreme Court later determined that Article XIII, section 7, does not exempt them from the state's "health and safety regulation that prohibits the sale of uninspected meat."
"With meat there's a possibility of food poisoning or unsanitary conditions. People get sick from bad meat, every now and then it happens," Gallagher said. "But with cannabis that's not conceivable. It's more like a tomato. You could have a bad tomato -- it would smell bad and you'd throw it away but you probably wouldn't die from a bad tomato."
Meanwhile, David Schultz, a professor of political science and legal studies at Hamline University, in an op-ed to MinnPost argued both court cases cited by Berris and Gallagher show that selling marijuana grown at home is more "complicated" and the constitutional clause may not be a "winning argument" to get around state rules about licenses for sales.
Gov. Tim Walz on Wednesday said he had not consulted with legal counsel on the issue, but said the law was not designed to allow such sales.
"It's just like every other piece of legislation, certainly around things like alcohol -- these are ever-evolving," Walz said. "And I've said I think there's a strong need, we'll come back, we'll revisit these things year after year probably for decades. But that was never our intention to do that."