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Amendment 3 has passed in Missouri: What’s next for recreational marijuana in the state?

Andrew White Gayle Mercier November 9, 2022

On November 8, 2022, Missouri voters considered Amendment 3 (the “Amendment”), a ballot initiative aimed at amending Missouri’s constitution legalizing recreational marijuana. Medical marijuana in Missouri was initially legalized November 2018 via the passing of Amendment 2. Unlike Amendment 2, the purpose of Amendment 3 is to “make marijuana legal under state and local law for adults twenty-one years of age or older, and to control the commercial production and distribution of marijuana under a system that licenses, regulates, and taxes the businesses involved while protecting public health.” Amendment 3 addresses four key points: personal use regulations, the marijuana commercial license application process, criminal expungement, and state tax implications.

Amendment 3 permits recreational marijuana use for individuals over the age of 21.  The Amendment allows individuals over the age of 21 to purchase and possess up to three (3) ounces of marijuana, without any other restrictions. Further, it allows for individuals to grow up to six (6) flowering marijuana plants, six (6) nonflowering marijuana plants, and six (6) clones, provided the individual is registered with the Missouri Department of Health and Senior Services for cultivation of marijuana plants. Marijuana plants grown by individuals are required to be kept in a private residence, in a locked space, and not visible to the public. 

In addition to legalizing recreational marijuana, Amendment 3 also creates a lottery selection process for licenses to operate marijuana-related facilities. The full application process and lottery system has not yet been agreed upon. However, the Amendment does state that the application process for a license calls for the voluntary submission of a comprehensive plan to promote participation in the regulated marijuana industry from communities that have been disproportionately impacted by marijuana prohibition. Proponents of the Amendment contend that this selection process provides a fair process by which commercial marijuana licenses are to be allocated, however, opponents of the Amendment argue that the voluntary nature of the comprehensive plan noted above does not do enough to address historical racial and socioeconomic inequities in the administration of drug laws in Missouri.

Passage of Amendment 3 also provides for expungement of certain marijuana related offenses. Section 7(a) of the bill states that any person currently incarcerated, serving a sentence, or on probation for a marijuana offense, involving three (3) pounds or less of marijuana may “petition the sentencing court to vacate the sentence, order immediate release from incarceration and other supervision by the department of corrections, and the expungement of all government records of the case.” Further, it states that within six (6) months of the Amendment being effective, all circuit courts must order the expungement of the criminal history records of all misdemeanor marijuana offenses for anyone who no longer is incarcerated. Proponents of the Amendment argue that the Amendment provides some measure of justice to those who are or were previously incarcerated due to marijuana possession, but opponents of the Amendment say that the offenses that the Amendment expunges would affect only a fraction of those who were convicted of non-violent drug offenses in Missouri and thus does not go far enough.

Finally, the tax associated with the Amendment is a 6% sales tax on the retail price of recreational marijuana sold to consumers. The tax collected is paid to the “Veterans, Health, and Community Reinvestment Fund,” which would be created by the Amendment. The tax funds are distributed first, to the costs of running and maintaining the Amendment. Second, to governmental entities carrying out the responsibilities in the expungement of criminal history records under the Amendment. Finally, the remaining tax funds are then split into thirds and paid to: (1) the Missouri veterans commission and allied state agencies, (2) organizations aimed at increasing access to evidence-based low-barrier drug addiction treatment, and (3) the Missouri public defender system.

Gayle Mercier is the Co-Chair of the Real Estate Group.  Andrew White is an associate in the Firm's real estate practice.

Thompson Coburn advises clients on state laws governing the business of cannabis to facilitate compliance with those state laws. Federal laws concerning cannabis currently conflict with state laws in states that have legalized cannabis or possession of cannabis. Although federal enforcement policy may at times defer to these states’ laws and not enforce conflicting federal laws, interested businesses and individuals should be aware that compliance with state law in no way assures compliance with federal law, and there is a risk that conflicting federal laws may be enforced in the future. In addition to this Cannabis-specific note, readers should review Thompson Coburn’s Conditions of Use / Disclaimers page containing other important information.