December 6, 2022

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The Legal System

Minnesota greenlights small doses of THC derived from legal hemp

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The Minnesota Legislature passed a sweeping set of hemp industry reforms Sunday night that will allow, among other things, small amounts of hemp-derived THC to be legally sold in edibles and drinks to those 21 and older.

“It’s really good for retailers, because it provides [legal] certainty, and also for consumers, because you have safety mechanisms in place,” said cannabis attorney Susan Burns.

Hemp and extracts like CBD have been legal so long as they contained less than 0.3% delta-9 tetrahydrocannabinol (THC), which is the primary intoxicant in marijuana.

But the intoxicating, hemp-derived cousin of delta-9 THC — delta-8 — is already being widely sold in Minnesota and has until now operated in an unregulated, legal gray area.

Now, hemp-derived THC — including delta-9 THC — in concentrations of up to 5 milligrams per serving and 50 mg per package will be allowed in properly labeled edibles and drinks in Minnesota. That’s about half the standard dose found in recreational marijuana products in other states.

“Overall I think it’s a way in which Minnesotans are going to be able to check out what it’s like to have legal products being sold on shelves in a non-gray market,” said Kurtis Hanna, lobbyist for the Minnesota chapter of the National Organization for the Reform of Marijuana Laws.

A federal appeals court recently found that delta-8 is legal under the 2018 federal farm bill, which legalized hemp cultivation and broke open the market for cannabidiol (CBD) and other hemp extracts.

“If … Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake,” wrote Judge D. Michael Fisher.

Minnesota’s rules do crack down on vaped delta-8 THC, however, as the 0.3% limit on THC content now includes “any tetrahydrocannabinol.” That will cause a major inventory shake-up at smoke shops accustomed to selling highly concentrated delta-8 products — a profitable and fast-growing market.

If the moves by Minnesota’s Legislature are a subtle move toward legalized recreational marijuana, “it’s pretty exclusively dipping that toe into beverages and edible food products as opposed to making any progress on smokeable or vaporizable products,” said Hanna, the pro-marijuana lobbyist. “But it’s a positive outcome.”

The hemp measures go into effect Aug. 1, provided Gov. Tim Walz signs it into law.

Among the other changes passed Sunday night:

Labeling, age requirements

Products with CBD and THC must be clearly labeled and can only be sold to those 21 and older. Edibles must be in child-proof and tamper-evident packages and carry the label “Keep this product out of reach of children.” Serving sizes must also be clearly defined. The rules are similar to those adopted by states that have legalized recreational marijuana.

“It’s a big win for the industry, and I believe we’re doing it in a responsible way,” said Steven Brown, founder of the Minnesota Cannabis Association.

Hemp in food and drink

The bill explicitly allows CBD in food and drinks, which has not been the case in Minnesota despite the proliferation of CBD-infused products at retailers and online.

Copycat crackdown

In response to some THC-infused products masquerading as major household brands, the hemp reforms will prohibit products “modeled after a brand of products primarily consumed by or marketed to children” and those “packaged in a way that resembles the trademarked, characteristic, or product-specialized packaging of any commercially available food product.” Commercial snacks and candy can’t be infused with THC and re-sold, either.

‘Loveless’ fix

The Legislature codified changes made by the Minnesota Board of Pharmacy to align the statutory definition of hemp with the federal definition. The move was necessitated by a state appeals court ruling in Loveless v. state of Minnesota that put into question the legality of hemp products.

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