Not everyone knows that the Minnesota Constitution prevents governmental entities of the state from requiring a license to sell the products of the farm or garden occupied and cultivated by the seller. But it does. Does this mean that a person who grows marijuana on their own residential property can lawfully sell that marijuana? Let’s dig in.
First, let’s take a look at the Minnesota Constitution:
Minnesota Constitution, Article XIII
Minnesota Constitution, Article 13,Sec. 7
Sec. 7. “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”
The Minnesota Supreme Court has decided a few cases over the years, interpreting the meaning of this Section. Though we won’t dive too deeply here, let’s look at two of the most relevant.
In State v Wright, 588 N.W.2d 166 (Minn. 1998), the Minnesota Supreme Court said that Art, 13, Sec. 7 does not a refer to a “fundamental liberty.” And it distinguishes farm products from “sale of unwholesome, misbranded or adulterated food.” The facts of the case involved a home grow. It was not a sale case, factually. The Minnesota Constitution did not help the criminal defendant appealing.
In a later case, State v Hartmann, 700 N.W.2d 449 (Minn. 2005), The Minnesota Supreme Court wrote:
“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.”
“We hold that article XIII, section 7, 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. The language of article XIII, section 7, is broad and clear.”
State v Hartmann, 700 N.W.2d 449 (Minn. 2005)
The Hartmann case involved the sale of meat, not cannabis. But the analysis of the Minnesota Constitution should be no different. The Hartmann Court continued:
“The Hartmanns’ constitutional argument based on article XIII, section 7, fails because the right to sell farm products without a license created by that provision is not as broad as they contend. As noted supra, the protection provided by article XIII, section 7, against licensing requirements does not exempt farmers from substantive regulation related to the production or sale of their farm products. Therefore, although article XIII, section 7, exempts a farmer from obtaining a license to sell the products of his or her farm, the farmer is not free to ignore regulations imposed on the production of those products. Similarly, if sale of a particular farm product is otherwise prohibited by law, article XIII, section 7, does not insulate farmers from that prohibition.
State v Hartmann, 700 N.W.2d 449, 456 (Minn. 2005) (emphasis supplied)
Before Minnesota legalized home grow, this Minnesota Constitution right didn’t matter much, given the above analysis by the Minnesota Supreme Court.
Legal Home Grow Breathes New Life Into Constitution
But now that Minnesota legalized cannabis home grow effective August 1, 2023, does this breathe new life into this Minnesota Constitutional right?
Based on the above, the answer for now appears to be, “yes.” At least, for a person 21 years or older.facing criminal charges for selling marijuana they grew in their own home, where they reside (in compliance with Minnesota Statutes Section 342.09 “Personal Adult Use of Cannabis,” Subdivision 2); they may be able to use this as a defense.
The Minnesota Constitution defense would appear to rest upon compliance with the substantive requirements of the law, with the only substantive exception being the licensing requirement.
Who wants to be a test case?
Hopefully, no one wants to face felony prosecution for a criminal sale of cannabis. Not only would that cost money to defend, the outcome could be uncertain, even if only in the short term.
But if a person is already facing a criminal charge for sale of cannabis, and they complied with all the home grow safe harbor requirements, this right guaranteed by the Minnesota Constitution might be an effective defense.
Caveats: Minnesota Constitution Defense
Age: The 2023 Minnesota Statutes on cannabis sales mention two ages: 18 and 21. If a sale to a person who is “underage,” is illegal for a licensed seller, this Constitutional defense would likely be of no avail.
Flower, not concentrates or edibles: Similarly, the 2023 statutes on home grow create a safe harbor, defining what makes person 21 or older, growing cannabis flower in their own residence authorized to grow and possess cannabis flower. But it does not do so for cannabis concentrate or edibles (or drinks).
Quantity: And, the 2023 statutes on cannabis possession weight limits legal possession to two pounds in your own home for persons 21 and older; or two ounces in public places for persons 21 and older. Amounts over those thresholds would be criminal regardless of licensing.
Need for Legislation
Minnesota NORML is asking the 2024 Minnesota Legislature to pass a new law, to better regulate and define this right guaranteed by the Minnesota Constitution to assist the citizens as well as governments in proper application of the law.
The courts might be asked to resolve some of these issues first. But a statutory framework helping people assert their constitutional right could prevent much needless suffering.
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About the Author
This article was written by Attorney Thomas Gallagher. It is in no way intended to be legal advice. This discussion of legal and public policy issues is offered for the purposes of education and public policy discussion only. Neither the author, nor Minnesota NORML suggests or recommends breaking the law.