Did you hear about what's going on in Minnesota with home grow?
A first-of-its-kind lawsuit has been filed asserting that the state constitution protects the right of the home grower to sell their excess crops (in compliance with state cannabis laws).
This story had already been making its rounds in the cannabis circles for a few weeks.
Then, this week, I came across an interview with the case’s lead lawyer, Jeff O'Brien, discussing what was going on and why Minnesota was unique in their legal challenge.
A bit of backstory...
Like many states with rich farming heritage, Minnesota has a history of siding with its farmers.
So much so that the ability to sell or peddle harvests from your "farm or garden" is constitutionally protected thanks to a melon farmer in Minneapolis (see below).
But I'm getting ahead of myself.
In 1903, Peter Jensen, a melon farmer in Minnesota, started selling his unsold melons from the farmers market on his way back home.
He was arrested and charged with peddling without a license.
The short version of the story is that he fought the charge and, after appealing his initial conviction, won his case.
This lead to the creation of Minnesota Constitutional Amendment 3, Section 7, which reads:
And this isn't some 100+ year obscure case that's being dug up for the first time since 1904. Minnesota has used this case as precedent before to rule in favor of the home producer on multiple occasions, even when challenged by large corporate interests.
In essence, this means:
If you grew it in your own garden or farm, you can sell it without a license.
You still have to comply with the rules and regulations regarding sales (you just don't need a license to sell).
So, when Minnesota legalized home grow, and cannabis became a legal plant to grow in your garden, did they accidentally legalize home grow sales?
That's what O'Brien and his clients argue.
Growing quality cannabis, especially as medicine, is not easy nor cheap.
Look, I'm the first one to bang the drum of growing weed is easy and cheap and you should absolutely give it a shot the first time you get the chance.
But doing it well.
Doing it right.
Doing it clean.
That all takes a certain amount of care and the right supplies and equipment.
It's not necessarily hard, but it takes some learning and investment to figure things out.
Home growers, especially those growing for medicinal needs, spend a considerable amount of time and money getting their crops to provide the quality they need.
O'Brien's clients contend that they should have the ability to sell anything they can't consume to help offset these costs.
The argument that growers should have the right to sell their harvests is nothing new (and is a quick way to get a passionate grower riled up).
But Minnesota is unlike most in its constitutional protection of this right that does not specify the crop or product, and preexists cannabis legalization in the state.
It's also worth noting (as was highlighted in the interview) that the original draft of Minnesota's legislation pointed out that Amendment 3 could call into question the state's ability to maintain licensing requirements the way other markets have.
In other words:
It costs money to grow your own.
If you can't consume it all, selling excess offsets costs.
The authors knew when they wrote the law that this was going to be an issue.
But I want to clarify something else before we continue:
This case is about home grow, but it has the potential to affect the entire Minnesota industry.
If the court rules that you do not need, and the state cannot require, a license to sell cannabis, it eliminates one of many hoops that legal operators usually have to jump through.
Sure, you will need a license to cultivate more than allowed under home grow provisions, but you might only need that 1 license, and could then sell direct as long as you comply with all the other rules & regs. Time will tell on this front.
Ok, back to home grow.
Prior to initating the case, O'Brien's team requested comment from the Office of Cannabis Management (MN's cannabis oversight agency) and received crickets.
They were told that the office was "aware" of the situation, but did not receive clarity as to what was or was not legal from the powers that be.
So they sued.
And now, the courts will decide.
But there were a few topics brought up in the interview that I'd like to address, some in support of what's happening, and others that need some myth-busting.
Specifically:
How regulatory rollout affects this situation
How this would affect the black market
How this affects home growers
Rules & Regs
#1: MN's legal cannabis rollout has sucked.
The state has had its fair share of turmoil since enacted, but the result has been that consumers still don't have state-legal places to buy weed and weed products.
While the state fumbles the ball, soverign tribes on federal land have begun popping up dispensaries. These can cater to some of the demand for legal weed, but are not always located near the consumers who need access.
Without state legal options, consumers have 4 options:
Drive (often long distances) to tribal dispensaries
Buy from the "black market" of unregulated producers
Go through the extensive process of getting a medical card
Grow your own
As O'Brien puts it, legalizing cannabis without laws is "messy," to say the least.
In the interview, he brought up how his father need access for medical reasons and had to see multiple doctors, pay a variety of fees, and go through a time-intensive process to get a medical card, something O'Brien believes you shouldn't have to go through to have access in a legal state.
If you're not willing or able to grow, your choices are limited.
By allowing those that choose to grow in accordance with the state's legalization, you open up a new, legal source for consumers to get the cannabis they need until the state rolls out a formal industry.
My Take:
Sure, home grow sales make cannabis more accessible when you can legally go buy bud from your buddy. In most states, though, the idea that we should allow unlicensed sales "while we wait" for licensing would seem a bit naive. In MN, things may be different.
#2: O'Brien believes this will curb the black market.
O'Brien's take is that, if home growers can legally sell excess product without a license, that the black market will dwindle because consumers will legally buy from home growers.
Gotta take the wind out of his sails on this one.
Here's the thing:
The "black market" is defined as operators that do not participate in the legal market. But that's also used to subtly imply things like "Cartels" and "Criminals" that are funded by America's drug purchases.
The "legal" market is defined as operators that participate in the legal industry.
Then, there's this grey area (the "grey market") that sort of operates in between. This is where farmers' markets and co-ops and social clubs and the like often operate. Adults, each individually abiding by most of the laws, but still selling outside of the regulated market.
So, by definition, sure, you make the black market legal, and therefore they're no longer the black market as defined.
Here's the reality:
Legalizing unlicensed sales will encourage grey market activity.
Let me explain by comparing this to growing.
Prior to legalization, growing at home was illegal.
Any amount of plants was considered a crime. Which meant that suspicion of growing alone was enough to warrant extra attention at best, or a raid at worst.
By legalizing home grow, two things happen:
Growing itself is not enough to get you in legal trouble.
There has to be suspicion you are growing more than legally allowed.
It's no longer whether you're growing, it's whether you're growing too much.
Nuanced, but significant, difference.
It means driving home from the grow store or having amazon send grow lights to your house is not enough to cause you to get raided.
Currently, if you sell weed without a license in MN, it's illegal. Any transfer of cannabis for remuneration (payment/monetary value). Any amount (with varying penalties, but they are all illegal).
By legalizing unlicensed sales, two things happen:
Selling your home grown weed is not enough to get you arrested.
There has to be suspicion you are growing and selling more than legally allowed.
It's no longer whether you're selling, it's whether you're selling too much.
Said differently:
It's about whether you're "playing by the rules," or at least appear to be.
Did you sell something is a yes or no.
How you conduct your sales becomes much harder to police.
My Take:
You might see less cartel weed if you legalize home grow sales, but "unregulated activity" isn't necessarily going to shrink.
#3: How This Affects Home Growers
During the interview, O'Brien is asked about how he sees this case affecting the home grower population as whole. His belief is that it will not have a big impact on how many people will want to grow or try to grow.
The rationale is that even if they legalize home grow sales, you still have to play within the small sandbox of home grow (8 plants total; 4 mature/flowering).
It's not like they're flipping a switch and saying, "Go wild, sell sell sell!"
You're still bound by the constraints of legal home grow.
My Take:
O'Brien is spot on.
It's a win for those already growing (and those that operate in the grey area of the law), but it's not a big enough incentive to make a non-grower decide to begin their cannabis cultivation empire 4 plants at a time.
(Though, in discussion with fellow growers, we did come up with some inventive ways to coordinate the home grow "market"...)
#4: Rules & Regulations aka "Why There Won't Be Pot Farmers' Markets"
The one aspect of this effort that O'Brien continued to harp on was that, this is a case about licensing, not rules and regulations that operators must follow.
If he and his clients win their case, it simply means you don't need a license to play the game.
You still have to play by the game's rules, though.
Right now, that means:
21+
8 Plants total
4 Plants in Flower
There are absolutely growers that can pull down 50+ pounds from 4 plants.
But most of us can't. And won't.
Which means that 4 plants really isn't enough to create a ton of supply.
Which also means that, if testing laws are enacted (which is likely given every other market), even unlicensed sales would require batch testing. And if you've only got an ounce of extra flower, and you have to submit 7 grams, that's 25% of your supply and profits. And the cost of that test (both materially and financially) might discourage you from even trying to peddle your wares.
But even more poignant than the burden of testing and taxes on the super small batch producer was the discussion of how the state can use licensing for other aspects to maintain the home grow sandbox.
Specifically, the state could require licensed transport of all cannabis.
Seems like no big deal, but O'Brien highlighted that this is how states can prevent farmer's markets, and force the "farm stand model."
In essence, if you grow pot at home, you can't sell it anywhere other than your home because you'd need a licensed courier to transport it to and from (another burdensome expense and requirement designed to discourage unlicensed activity even if sales are allowed.)
My Take:
I was blown away by the "What does that actually mean" impact of licensed transportation requirements.
When we hear the term, many of us think armored trucks and security teams, but it can as simple as forcing you to sell on site under the guise of the "Safety" of the product and general public.
That said, I'd love to see small Home Grown Pot Stands popping up at the end of driveways the way kids set up lemonade stands in the summer.
Overall, this is all the result of MN including legal Home Grow when they legalized cannabis.
This wouldn't have been a problem if they had legalized without home grow—which, for the record, I am not a proponent of.
No legal home grow = no worry about whether you can sell excess from your garden, because it's not legal to have the garden.
But because they legalized it, and because of a pre-existing agricultural protection, we are getting to see the first case of its kind fight the good fight for the home grower's right to sell weed they grew legally.
They still might've had problems requiring licenses for commercial producers under this same amendment, but the discussion about whether a home grower can sell weed wouldn't have ever been a thing without backing into this situation.
What This All Means and Why It Matters
Home grow is not a popular cause.
It's not that it's unpopular.
It's more that most people don't even think about it.
Most people just think "we legalized it" includes everything.
On top of that, advocating for the ability to sell your home grown without having to open a legal cannabis business is even less popular.
Most people just think "get a license and do it."
So, imagine my surprise to see a lawsuit on behalf of home growers' right to sell their harvests making national news.
At first, I shirked it off like most cannabis news bytes as a ploy for clicks.
Predictions for MN & Right To Sell Home Grow
Based on what I have read and heard, this is the first case that I believe might actually have ground to stand on.
As much as I love home grow and advocate on behalf of the home grower, I'm not always as confident as the crowd when it comes to the right to sell (more on that below).
That said, Minnesota:
Has a constitutional amendment protecting this very activity
Has established precedent on multiple occasions
Has restrictive enough laws that allowing home grow sales wouldn't be as big of a competition for larger operators nor have as much impact as it would if you could grow 50 or 100 plants, for example.
My prediction: Minnesota won't legalize home grow sales independent of more regulations.
We might see the first big win for home grow sales. But it will be accompanied by regulations that discourage unlicensed market participation for most growers (i.e. testing, transport, etc.)
Final Hot Take on Home Grow & the Right To Sell
Ok, here's where things get spicy.
Unlike most home growers I talk to, I don't believe selling your wares is an unalienable right that automatically accompanies the right to grow your own.
Sure, outside of the construct of our real world, yes, you should be able to grow/make/sell whatever you want.
But there's a reason we have rules and regulations, and "snake oils," or products sold under false pretenses that could be unsafe, are the reason.
Not everyone wants to play nice. Human nature is a fickle bitch.
So, when growers ask me:
"Do you think it should be legal to sell weed you grew?"
What they usually mean is:
"Do you think I should have to pay [the state, the government, the regulatory body] to sell weed I grow and play by the rules of the game?"
What they want to hear is Yes, and No.
In that order.
And I disagree.
My response is usually something along the lines of:
"The ability to sell your harvests should be accessible to all growers."
And by that I mean that there should not be unreasonable burdens preventing you from playing the game.
As a self-employed writer, I'm also a business owner, selling my words for revenue.
I have to maintain a business license and a sales tax license just like any other business, whether they sell books and writings or whether they're Coca Cola. I have to comply with state commerce laws. I have to remain in good standing with the state.
So, it is logical to me that, to engage in any commerce in any space, a reasonable regulatory and fee structure exist.
It costs me less than $50 a year in licensing to be in business for myself. That seems accessible to most, especially those hoping to cash in on the higher prices of quality small batch cannabis.
Short version: Yes, you should have the right to sell your product. No, it's not necessarily your god-given right to do so for free, without restriction or oversight.
If you want the right to sell your home grown cannabis, it's going to take effort.
It won't just happen.
Growers need to stand up for other growers.
We need to advocate on behalf of our rights and remain active in the discussion surrounding how cannabis legalization plays out.
And, occasionally, we need passionate people to sue the government to effect the change we need to see.