Minnesotans can now legally grow their own marijuana at home, but the state's new recreational cannabis law prohibits them from selling it.
Should Minnesotans be able to sell marijuana they grow? Advocates say state Constitution allows it.
The state's marijuana law says selling it without a license is a crime ranging from a petty misdemeanor to a felony.
August 19, 2023 at 7:44PM
Even so, some advocates in Minnesota's cannabis community argue that a little-known provision in the state Constitution allows them to sell the marijuana they grow. That provision states that "any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor."
"That would appear to apply to cannabis," said attorney Thomas Gallagher, a board member for the Minnesota chapter of the National Organization for the Reform of Marijuana Laws (NORML).
At a Minnesota NORML news conference earlier this month, Gallagher called on the Legislature to weigh in on the matter next year.
But the Legislature has already taken a firm position. Lawmakers passed a recreational cannabis law this year that allows Minnesotans 21 and older to grow up to eight marijuana plants per residence. They can even give away some of the cannabis they grow to other adults.
Selling it without a license is a crime ranging from a petty misdemeanor to a felony, however. The first licensed retail dispensaries — outside of tribal reservations — aren't expected to open until early 2025.
"We did not allow for selling cannabis by unlicensed individuals, and I would be very surprised to see that change," said Sen. Lindsey Port, DFL-Burnsville, who sponsored the marijuana legalization bill in the Senate.
Port also said that the constitutional amendment cited by advocates has limitations.
"Where health and safety are a concern, there is precedent in restricting that part of the constitution. For instance, there are restrictions on selling raw milk," Port said.
David Schultz, a political science and legal studies professor at Hamline University, shared the same view in a recent opinion article he wrote for the news website MinnPost. He cited a 1998 Minnesota Court of Appeals ruling that stated the constitutional provision does not protect marijuana sales.
Schultz also mentioned a 2005 Minnesota Supreme Court opinion that stated that farm-raised meat sales could be regulated to protect public health.
"Given these decisions, the state could ban or regulate the sale of marijuana even by individuals who grow it on their farms or in their backyards," Schultz wrote.
That doesn't mean people won't try to sell the cannabis they grow, though. Gallagher said he expects some homegrowers will sell marijuana to their friends regardless, potentially getting themselves into legal trouble while also bringing the question of this constitutional provision up for fresh consideration.
Growing marijuana at home can be costly, so some growers might consider selling to help recoup their costs, Gallagher said.
"You don't think people are going to sell the weed they grow?" Gallagher said. "It's going to happen."
A local cannabis company already tried to sell plants in the parking lot of a tobacco shop in Faribault earlier this month, and had them confiscated by police. The company owner argued that because the plants were immature and contained no THC yet, he should be able to sell them.
Cops disagreed with that interpretation. Minnesota businesses are allowed to sell cannabis seeds under the new law, but they can't sell immature marijuana plants or flower without state licenses permitting them to do so.
If a homegrower chooses to sell some cannabis and faces a criminal charge for doing so, "this right guaranteed by the Minnesota Constitution might be an effective defense," Gallagher wrote in a recent blog post.
Should there be criminal penalties?
Advocates from Minnesota NORML are also asking state lawmakers to repeal all criminal penalties for marijuana possession. Under Minnesota's new marijuana law, it's a crime to possess or grow at home more cannabis than what's legally allowed.
Adults may possess up to 2 ounces of marijuana flower in public and up to 2 pounds in their homes. They also can possess up to 8 grams of cannabis concentrates and edible products containing up to 800 milligrams of THC.
But NORML advocates argue that such possession limits are unfair because there are none for alcohol products. Port didn't comment on the matter.
"People aren't getting arrested or prosecuted or convicted of possessing too much beer or wine or distilled spirits," Gallagher said.
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