An amendment adopted 120 years ago says farmers can peddle their products without a license, and a lawsuit filed this week says that should apply to homegrown cannabis.
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The first lawsuit since the legalization of cannabis in Minnesota that seeks to use a state constitutional provision to allow the unlicensed sale of cannabis by the farmer who grows it has been filed in state court.
Four residents who grow small amounts of cannabis at home, which is legal under the new law, are suing the state Office of Cannabis Management (OCM) saying they should also be able to sell it under a provision in the state’s constitution.
The lawsuit, which names OCM interim director Charlene Briner and state Attorney General Keith Ellison, was filed Tuesday in Ramsey County District Court and challenges the provision in the state’s new cannabis law stating that only those licensed by the state can sell it. Those licenses are not expected to be granted until next spring and are expected to be competitive.
But the plaintiffs, citing Article 13, section 7 of the constitution, challenge the state’s authority to prevent the sale of cannabis by the farmer who grows it. “No license required to peddle. Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor,” says the provision adopted 120 years ago.
That provision resulted from the arrest of a farmer who was selling his excess melons on the streets of Minneapolis without a peddler’s permit. When hemp and cannabis were illegal, the few court cases brought under the provision said no one could sell it, even the farmer who grew it. But when it became legal to grow and possess on Aug. 1, 2023, did the legal calculus change?
That’s the argument brought by four state residents who are growing up to eight cannabis plants of their own at home. Three of the four are medical cannabis patients, including Patrick McClellan, who lives with a rare form of muscular dystrophy and has been an advocate for medical cannabis since before it was made legal.
Patrick McClellan shown testifying before the House Commerce Finance and Policy Committee on January 11, 2023. Credit: Screen shot
“Plaintiff McClellan’s plants produce more product than he can reasonably consume for recreational or medicinal purposes,” the lawsuit states. “The costs of growing at home are significant. The costs include equipment for proper cultivation as well as additional expenses in order to be statutorily compliant and cultivate his medicine within his home.
“Plaintiff McClellan cannot reasonably consume all cannabis that he has cultivated in his home for his medicinal purposes. As a patient who has endured the struggle of gaining access to affordable and safe medical marijuana, Plaintiff McClellan would like to offset the costs of growing cannabis by selling the excess crop to other similarly situated individuals.”
The suit asks the court to declare that people who grow their own cannabis at home “do not need to obtain a license to sell their product.” And it asks the court to block the state from bringing “any criminal enforcement of the sale of cannabis produced from home cultivation pursuant to (the constitutional provision) based on the absence of a license to do so.”
Ellison spokesperson John Stiles said the office had just seen the lawsuit.
“All I can tell you for now is that we’re reviewing the lawsuit, which of course was only filed this week,” Stiles wrote.
Minneapolis attorney Jeffrey O’Brien brought the lawsuit. In an affidavit filed with the case, O’Brien said he first wrote to the Office of Cannabis Management and the Department of Health asking for a declaratory opinion that they would not take action against home growers who sell.
Health, which includes the Office of Medical Cannabis, did not respond. A brief email from OCM stated: “The Office of Cannabis Management does not issue Advisory Opinions. We are aware of the discussion surrounding the product of the farm exemption and cannabis and are monitoring it closely. Given that your question may implicate matters of criminal law, we recommend reaching out to county attorneys in the relevant jurisdictions.”
O’Brien said Thursday that he doesn’t think his clients are being unreasonable. They are allowed to grow cannabis and they can even give their excess away, he said. They should, under the constitution, be allowed to sell what they grow as long as the buyers are 21 or older,” he said.
“As long as we stay within the lanes that you set up in terms of rules and regs, as long as we limit it to what can be grown legally, it would seem straightforward that you’re able to sell the products off of those plants per article 13, section 7 of the constitution,” O’Brien said.
Should OCM adopt rules regarding cultivation safety and product testing, his clients would have to follow those, he said. But until then, the number of plants and the age of customers would be the only provisions they would have to follow if the court agrees they are allowed to sell.
“We’re trying to be reasonable,” O’Brien said. “We’re not saying you can grow an entire field and sell it without a license. We’re saying to the extent you can legally grow on your own without a license, you are entitled to sell that product.”
While this suit isn’t asking for broader rights, if the court finds that cannabis as a legal farm product is covered by the constitutional provision, it could have broader implications. A longtime legalization advocate said this last year: “Starting with the premise that cannabis is a plant, not a crime, we envision a peaceful community where growing a little hemp to smoke, share, or sell at farmers’ markets is no more unusual than growing rutabagas or zinnias,” wrote Grassroots – Legalize Cannabis Party founder Oliver Steinberg in response to a question about how he thinks the constitution will impact legal cannabis in Minnesota.
After the law passed, chief House sponsor Rep. Zack Stephenson said he didn’t think the constitutional provision will impact the regulation created in House File 100.
State Rep. Zack Stephenson
“I think the case law suggests that regulation is permissible,” the Coon Rapids DFLer said at the time. “I think there is strong government interest in regulating here. This isn’t carrots or pumpkins, this is an intoxicating substance.”
While obscure to many people, Article 13, section 7 has been top of mind for legalization advocates, appearing on buttons and websites. A legal challenge like the one filed this week has been anticipated since legalization.
The case law on the issue is relatively thin. In 1996, Chris Wright was charged with the illegal sale of marijuana. Wright and his attorney Randall Tigue argued that Art. 13, Section 7 made the charge unconstitutional. While marijuana was illegal in 1996 when he was charged, when the constitutional amendment passed in 1906 it was “every bit as legal a substance in the State of Minnesota as wheat, corn, oats, and soybeans,” Wright argued.
In State v. Wright the state court of appeals disagreed, finding that because marijuana was illegal and because previous courts had upheld those statutes, the constitutional provision did not apply. Even the peddler provision of the constitution does not create a fundamental right that would have imposed stricter requirements on the government to show its laws are constitutional.
“We do not have the prerogative to disregard the supreme court’s analysis of marijuana laws,” the appeals court wrote. “Having concluded that this case does not present the conflict of a fundamental liberty with the established police power prohibition of the sale of marijuana, we decline to engage in further discussion of the meaning of Article 13, Section 7.”
Other cases involving otherwise legal farm products found that while the actual sale might be protected from licensing, state health and safety laws could be invoked, even to the point of prohibiting the sale of farm products considered unsafe.
In a case involving the sale of custom-processed meat, the state Supreme Court found a right to sell, but with exceptions.
“The circumstances leading up to the passage of article XIII, section 7, make clear that the voters of Minnesota intended to protect the commercial relationship between farmers and their customers by restricting the state’s power to license the sale of farm products directly to the consumer,” wrote the court in its decision in State v. Hartmann. This view is supported by this court’s observation in a 1925 case that Article 13, section 7 gives “recognition to the fact that tillers of the soil stand in a peculiar position in reference to the marketing of their products, and it prohibits the imposition of a license to sell or peddle the same.”
“We do not believe, however, that article XIII, section 7, can reasonably be read to grant farmers the right to sell products of the farm, the growing or sale of which is otherwise prohibited by law. This provision merely provides that products of the farm for which any person may obtain a sales license; i.e., lawful products, may be sold by farmers without obtaining a license to do so.”
The same court puts the exception in a slightly different, but perhaps significant, way later when it writes that the constitution “grants farmers the right to sell products of the farm or garden that they are not otherwise legally prohibited from selling, without obtaining a license.”
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