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Legislative News and Views - Rep. Tina Liebling (DFL)

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Regulating the sale of edibles containing hemp-derived THC

Wednesday, July 20, 2022

You have likely seen in the media that Minnesota “legalized” THC edibles by accident or by stealth.  I have long supported legalization of cannabis for personal use.  However, I don’t agree with those who say this legislation “legalized cannabis” or legalized anything that was previously illegal.  However, the issue is complicated, and some may think about it that way.

There has been a lot of attention to the exchange between Senator Abeler and me in the conference committee, when he jokingly asked whether we had just legalized marijuana and I jokingly responded, “Of course.  Just kidding.  We’ll do that next, okay?”  There has been other speculation that we “legalized” by accident.

This was no accident, and I was not aware of any intention to deceive anyone. 

HF 3595 was heard in the Health Finance and Policy Committee, which I chair, on March 18 and was re-referred (voted). to the House Commerce Committee.  That committee sent it back to me and I put it in the House Health Omnibus bill.  While this is a complicated issue, all these steps were done in public and I, Rep. Edelson (the bill author), and other House members understood what the bill did. Some legislators have made public statements suggesting that this was done as a stealth bill to reduce opposition. If that is true, I was unaware of it. 

Senator Abeler’s public confusion over what he had just voted for may have stemmed from the fact that the Senate did not hold any hearings on the companion bill. 

Here’s the detailed background (with thanks to Ben Johnson from House Research, but I heavily edited his explanation, so all errors are mine alone):

THC, the “intoxicating” ingredient in cannabis, has been sold in Minnesota stores for a few years without legal clarity and without needed regulation.  This was possible because of the 2018 federal farm bill that expanded the concept of “hemp” beyond plant material.  Minnesota also changed our law around the same time to match the federal law and authorized the sale of “non-intoxicating cannabinoids.” 

Hemp is a form of cannabis that has many agricultural and other uses and is low in THC.  The federal bill classified extracts as “hemp” provided they did not have more than 0.3% of a type of THC called delta-9—considered the primary psychoactive substance in cannabis.  However, this created legal uncertainty for several reasons, including that hemp contains another kind of THC, called delta-8, that is also psychoactive.  Nevertheless, products containing CBD (which contains traces of THC) and edibles containing high levels of delta-8 THC were being sold in stores around the state. It was unclear whether these products were “food” or “drug,” so no agency was clearly in charge of regulating them and they were left unregulated.

In the fall of 2021, the Minnesota Court of Appeals ruled that possession or sale of any amount of THC in a mixture was a felony under Minnesota law.  Because it is nearly impossible to remove all traces of THC from CBD, the possession or sale of products containing CBD and delta-8 THC were now felony offenses. This put buyers and sellers of CBD and THC edibles at risk. 

In March, 2022, the Minnesota Board of Pharmacy responded to this problem by using its statutory authority to reschedule THC. The Board defined “THC" to not include material that falls in Minnesota’s definition of hemp.  Once again, THC was legal in Minnesota as long as it was derived from hemp and contained no more than 0.3% delta-9. But there was no limit on other forms of hemp-derived THC (delta-8) and edible products were not regulated. 

The new legislation did not explicitly authorize or prohibit the sale of products containing THC.  The changes established (1) that the Board of Pharmacy has the authority to regulate the products should they become or be legal and authorized; (2) set limits on edible products that are generally far below the amount that would be legal under strict application of the 0.3% limit; (3) clarified that the limits apply to the combined total of all forms of THC (delta-9, delta-8, etc.); and (4) established additional requirements related to packaging, labeling, and sales that increase the information given to consumers and seek to prevent sales to or consumption by individuals under age 21.

Under the new legislation there is still a gray area related to whether the products being sold are “nonintoxicating” as still required by law.  However, the term “nonintoxicating” is not defined so whether these products are actually legal is still unclear. 

State and local government entities could argue that these products are not “nonintoxicating” so the sale is illegal (although possession is clearly legal).  The industry could argue that these are legal “industrial hemp” products under Minnesota law and that “nonintoxicating” has a meaning related to THC amounts permitted under the new law.  But everyone should agree that any THC edible must now meet the requirements for packaging, labeling, product type, and level of THC. 

The arguments in committee and on the floor focused on the fact that the products were being sold in stores without any consumer protections or age restrictions.  It was urgent that we fix this, so we did.