Is Hemp CBD legal in Minnesota?
The law could be easier to follow. But the answers are here. CBD sourced from hemp was legal under Minnesota law. And since 2019 CBD with less than 0.3% THC is legal to possess. Moreover, a federal law prohibits spending on federal prosecution of people with state-legal hemp CBD. So here is the breakdown of the development of these laws.
Cannabidiol, CBD, is trending strongly. Why?
The main reasons are:
- CBD has desirable health and wellness benefits.
- CBD has no psychoactive effect, unlike psychoactive drugs such as alcohol, etc.
- It is not now, nor has it ever been, illegal. And, it’s unregulated.
Only the third reason listed — the laws — could change. The biology of the plant and of humans will not change.
CBD itself is not illegal. It never was. But its federal legal status was more complicated in 2018, than that statement seems to imply. And we’ll dig into it here.
First though, what is Cannabidiol, or CBD?
The second-most researched chemical in cannabis is Cannabidiol.
CBD relaxes muscles, has other therapeutic effects, and is non-psychoactive.
Producers commercially extract CBD from cannabis plant resin. And then they concentrate; and then dilute the extract into an oil high in CBD, but low in THC.
What is THC?
Cannabis plants contina tetrahydrocannabinol (THC), along with 113 other cannabinoids. And THC is the psychoactive constituent of cannabis. So it gives adult-use users the desired marijuana “high.” But in marijuana, CBD and THC balance each other.
CBD counters and mitigates (reduces) the psychological effects of THC.
Producers breed cannabis for high CBD. And they grow cannabis with the goal of producing a high CBD-yielding plant.
Medical marijuana can contain more than twenty percent CBD. But most adult-use marijuana has one percent CBD or less.
Science vs. Law – Two Worlds, Three Words
“Cannabis” has generally been a botanical, scientific name for the plant. But the word “marijuana” came from 1930s laws.
The definition of marijuana was purely legal, defined by statute – not science.
The word “hemp” has long been in usage apart from its legal definition, from ancient times. But it now has a legal definition embedded in statutes.
As a result, cannabis is now primarily a scientific term for the plant. “Marijuana” and “hemp,” on the other hand, are primarily legal terms. The statute invented two separate legal categories of cannabis.
Currently under the law in Minnesota, “hemp” is not “marijuana,” and “marijuana” is not hemp.
The Resin
The cannabis plant has many varieties – high resin varieties as well as low resin varieties.
And the resin contains most of the THC and CBD and other, entourage cannabinoids.
The older legal definition of “marijuana” focuses on the resin as being problematic. The 1970 Controlled Substance Act definition of “marijuana” demonstrates this.
The Minnesota version’s definition focuses on resin as well. Minnesota Statutes §152.01, subd. 9 (2018):
“Marijuana.”Marijuana” means all parts of the plant of any species of the genus Cannabis, … whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
Minnesota Statutes §152.01, subd. 9 (2018)
(Despite this statutory definition: “all parts of the plant of any species of the genus Cannabis;” another statute defining hemp says the hemp form of cannabis is not “marijuana.” Discussion of the Minnesota hemp statute follows.)
The THC level dividing line — hemp is not marijuana
More recent developments in the law draw a THC-level line between “marijuana” and “hemp.”
Hemp has “no more than 0.3 percent THC by dry weight” under federal, and now Minnesota law. (Other states, however, have higher THC thresholds for hemp than Minnesota does – and for good reason.)
This historical, legal development over time has created unintended consequences and legal ambiguities. Such as?
Hemp CBD: The Problem
Here is the big problem.
People want to be able use CBD products for health and wellness support. And no one seems to object to CBD itself, as CBD. After all, it has no intoxicating effects; has no euphoric effect.
But, the best CBD comes from “marijuana” not hemp, as legally defined under the federal and Minnesota legal definitions.
Yet CBD from legal hemp is currently legal. But CBD from illegal marijuana was currently illegal in 2018.
In 2018, It was the source that made it legal or not. But this changed in Minnesota in 2019: New Minnesota Definition of Hemp changes Hemp-CBD Oil legality.
Hemp CBD – Hemp as a Source of CBD
Though producers can extract CBD from a hemp source, hemp naturally has little resin (compared to marijuana). And so it has little CBD. This is a problem because CBD, like its sister THC, concentrates in the plants’ resin.
Absolute vs. Relative Levels of cannabinoids
Hemp is a less efficient source of cannabinoids, including CBD (two-to-four percent).
But the low-level of THC in hemp does not prevent the ratio of CBD-to-THC from being high, ten-to-one, or more. In this relative sense, some hemp varieties are “CBD rich.”
Cannabis plant varieties with higher absolute levels of CBD exist. If a plant contains over twelve percent CBD in the flower buds, it will normally contain over three percent THC. (And over just 0.3 percent THC would make the cannabis “marijuana,” not “hemp.”)
The extract from that sort of plant can be purified to produce crystalline CBD. (Note the difference possible between the THC level of the plant vs that of the end product.) Again, the pre-2019 laws made CBD legal if from a legal source (i.e., hemp); but illegal if from an illegal source (i.e., illegal “marijuana”).
Manipulation of the plant to comply with the law
Nature vs. Nurture
Growers can genetically breed and crossbreed plants. And they can cultivate plants to increase CBD, while decreasing THC levels to less than the legal threshold for hemp.
Hemp is a low-yield source of CBD. So growers must use large amounts of hemp to extract a relatively tiny amount of CBD; as compared to “marijuana” plants.
Bioaccumulation: A side effect is that hemp-sourced CBD is at risk of containing high levels of environmental contaminants. Because hemp is a bio-accumulator, growers should test the quality of the soil. Since producers need large amounts of hemp to produce small amounts of CBD, contaminants also concentrate.
So, marijuana-sourced CBD is not only more efficient; but results in a higher quality and safer end product.
Clear Legal Landmarks and Ambiguities
The plant vs. the end product
The legal status of CBD products, in Minnesota in 2018, varied depending upon the THC level in the source plant, not the end product. (That changed in 2019.)
In other words, a CBD-product with “no more than 0.3 percent THC by dry weight” was still illegal; if sourced from a “marijuana” plant. This, even if the product had zero THC. What sense did that make?
The current situation with CBD, hemp and Minnesota law, since 2019:
- If it’s not listed in the federal or state version of the Controlled Substances Act, CSA schedules; it’s not a crime
- Both “marijuana” and THC are listed; in both Minnesota and federal CSAs.
- But CBD is not listed in either the Minnesota or the federal CSA, and so is not illegal as CDB.
- The most commercially feasible source for CBD is “marijuana.” Hemp has less resin, and so less CBD.
- Before 2019 in Minnesota, CBD sourced from “marijuana” plants, was a crime to possess. But in 2019, Minnesota law changed to base legal status of cannabis products on THC level rather than source-plant.
- Hemp sourced CBD (or theoretically another non-“marijuana” source) is not a crime to possess. It is unregulated.
- Products marketed as CBD may include contamination. This is partly due to the lack of regulation and the legal push away from “marijuana” as a source. Compared to marijuana, hemp is an inferior source of CBD.
Proposed solutions:
- Simple solution: Completely legalize marijuana. Then legally source CBD from “marijuana” – a better source for safe, quality CBD.
- Baby step: Increase the THC threshold for hemp from .03 percent to 1.0 percent or more. (For example, West Virginia defines hemp as cannabis with a THC concentration of less than 1 percent.) This would improve the quality of hemp sourced CBD.
The Legal Grey Areas for Hemp CBD
Historical development
As is often the case with the law, the the legal status of CBD is the result of history. Metaphorically, lawyers and judges are like archaeologists. We dig down through the layers. And we discover how the past influenced later developments, to interpret the current state of the law.
The development of laws relating to the cannabis plant strongly influence the legal status of CBD. And that is because CBD is a component of the cannabis plant. Controversy buffeted those laws since about the end of the U.S. Alcohol Prohibition era; when the marijuana Prohibition era began.
Since then, the back-and-forth on marijuana laws over time made a ragged edge in the laws; legal ambiguities. It’s a bit messy. But we train lawyers to untangle such messes. So here we go.
Conflicts
First, a succinct topical description of the conflicting policies and laws, will be followed by explanation. The following legal factors interact and often conflict with each other:
- Restrictive Federal Hemp Research law (“Farm Bills”), vs.
- federal statutory recognition of State authority, vs
- preemption of State laws by federal laws, vs
- federal comity or non-enforcement policies (“Appropriations Acts” – no money to enforce; plus local U.S. Attorney discretion).
In Minnesota, the ambiguity seems to come from the federal laws, not our state laws. So let’s look at the federal laws first.
Federal Legal Timeline
1970, Federalism, Down for the Count
The 1970 Controlled Substances Act introduced the idea of five “schedules” ostensibly based upon social risk vs. benefit. Schedule 1 drugs are those claimed to have a high potential for abuse; and no currently accepted medical treatment use.
Despite expert disagreement with claims of “a high potential for abuse and no currently accepted medical treatment use;” “Congress included “marijuana” in Schedule 1 in 1972,
But by 2018, thirty-one states had legal medical marijuana programs. And fifteen states (e.g., Wisconsin) allowed marijuana-sourced “low THC, high cannabidiol (CBD)” products for health use.
The majority of the U.S. population now lives in a state where medical marijuana is legal. How do these facts square with the “Schedule 1” claim that it has “no currently accepted medical treatment use?”
Note that Minnesota adopted its own state version of the federal CSA, with five schedules of listed drugs. It is not identical to the federal version.
Minnesota state sovereignty
Most people do not know that Minnesota can remove or re-schedule marijuana out of Schedule 1.
And we can re-schedule in Minnesota, regardless of the federal CSA.
Others states have. The State of Oregon rescheduled marijuana to its Schedule 2 in 2010.
Schedule 1: marijuana and THC are listed; CBD is not
The federal CSA schedule defines “marihuana,” as the cannabis plant except for the mature stalks and non-germinating seeds. And, THC is separately scheduled under the federal CSA — the only natural cannabinoid specifically scheduled.
CBD is not a scheduled drug under the CSA.
You won’t find it listed on the CSA. Go ahead and check. It’s not there.
Despite this welcome clarity in the law, some remain confused about this easily verifiable law.
For example, as of 2018, the Wikipedia entry for “Cannabidiol” falsely claimed that Schedule 1 of the federal Controlled Substances Act lists Cannabidiol (CBD).
But a five-minute online fact-check of the statute reveals otherwise. In fact, CBD is not in Schedule 1 of the federal Controlled Substances Act. And it never was.
2008, the Dawn of the Federal Non-enforcement policy
By 2008, state after state had passed laws decriminalizing marijuana, and legalizing medical marijuana; and the trend was clearly accelerating.
The Prosecutorial Discretion era
2009: “the Ogden memo” in 2009, instructed all U.S. Attorneys to make federal prosecution of marijuana possession a low priority; especially for people complying with a state’s medical marijuana law.
By 2012 in Colorado’s November 2012 general election, marijuana legalization got more votes than the winning Presidential candidate, Barack Obama. Clearly, legalization transcended partisan politics and politicians took note.
2013: “The Cole memo” in 2013, suggested federal prosecutors rely on the states to enforce state law. But it excepted “marijuana-related conduct” within one of eight limited federal “enforcement priorities.”
The memos identified Controlled Substance Act enforcement priorities. They encouraged federal prosecutors to avoid enforcing federal drug laws against “seriously ill individuals” using marijuana consistent with state laws.
In January 2018, U.S. Attorney General Sessions issued a Marijuana Enforcement Memorandum rescinding the Cole Memorandum. And the Sessions Memo asked federal prosecutors to decide how to prioritize enforcement of federal marijuana laws. The Sessions memorandum asks local U.S. Attorneys to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General … .”
These administrative directives encourage federal comity to the states. And they encourage non-enforcement of federal marijuana laws against people abiding by state law.
2014, The Rebirth of Federal Legal Hemp – Baby Steps
Federalism returns – the statutory era
2014 “Farm Bill,” the Agricultural Act of 2014, 7 U.S.C. § 5940: While legal experts insisted CBD was legal under the 2014 Farm Bill; some government agencies claimed the contrary.
Much of this confusion was due to a lack of attention to the source of the CBD under then current law. CBD was not the subject of these laws; hemp was.
Section 7606 of the 2014 Farm Bill provided for the legal cultivation, by the states, of “industrial hemp” without a permit from the federal DEA. (“Hemp Pilot Programs”). And the 2014 Farm Bill protected cultivators registered under a state’s hemp research pilot program. So growers had to cultivate cannabis with no more than 0.3% of THC. And they had to meet the requirements of their state department of agriculture.
Lawyers for the hemp industry argued that 2014 Farm Bill’s language was broad enough to include market research. And this included sales of hemp-based CBD products.
But the federal Drug Enforcement Administration (DEA) then emphasized their view that CBD remained illegal under the Controlled Substances Act, leading to lawsuits by the hemp industry.
Court interprets the Farm Bill
Regardless of the DEA’s prior position, courts have weighed in, and clarified the law:
“The Agricultural Act provides that “[n]otwithstanding the Controlled Substances Act . . . or any other Federal law, an institution of higher education . . . or a State department of agriculture may grow or cultivate industrial hemp,” provided it is done “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research” and those activities are licit under the relevant State’s laws. 7 U.S.C. § 5940(a). The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it.”
HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, Court of Appeals, 9th Circuit 2018
The court emphasized that the 2014 US Farm Bill federally legalizes hemp where legal under state law.
And that it overrides any conflicting language in the 1970 Controlled Substances Act (such as the definition of “marijuana”). So, section 7606 of the 2014 US Farm Bill (the “Farm Bill”); allows states to grow “Industrial Hemp” {less than 0.3% THC) in states with agricultural pilot hemp programs.
Minnesota had done so.
The Court found that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.
2015: Federal Nonenforcement – the Sequel, this time with Congress
2015: Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015), prevents the Justice Department from spending federal money to prosecute state-sanctioned activities with marijuana or industrial hemp.
And the court removed any doubt. The plain language of the federal statute, mandates federal non-intervention in state legal marijuana and hemp.
“The Consolidated Appropriations Act forbids the use of federal funds from being used “in contravention of . . . the Agricultural Act” or “to prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014.” Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015).”
HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018
In 2014 and 2015, Congress passed the landmark Rohrabacher-Farr amendment to the Commerce, Justice, Science and Related Agencies (CJS) Appropriations Act, The Appropriations Act prevents the federal Department of Justice from using funds to interfere in state medical cannabis programs and bars ongoing federal cases. Subsequently, state medical marijuana programs increased from 20 states to 31 states.
2017: DEA Rule by Fiat Fizzles
The court lays it out
New DEA Drug Code (7350) for Marijuana Extract – “went into effect on January 13, 2017:”
“Petitioners Hemp Industries Association, … (collectively “Petitioners”) petition this Court to review a final Drug Enforcement Agency (“DEA”) rule that establishes a new drug code for marijuana extract.
HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018
We … deny the petition. … The rule went into effect on January 13, 2017, and Petitioners timely filed the instant petition for review that same day. A party may petition a Court of Appeal for review of a final DEA decision, 21 U.S.C. § 877, but if the party fails “to make an argument before the administrative agency in comments on a proposed rule,” they are barred “from raising that argument on judicial review.”…
The Final Rule put this question to rest when it rephrased the definition to apply to an “extract containing one or more cannabinoids [.]” 81 Fed. Reg. 90195 (Dec. 14, 2016).”
Then the DEA backtracks
The DEA’s Clarification of the New Drug Code (7350) for Marijuana Extract, conceded that the legal status of CBD, depended upon the legal status of its source. But it failed to acknowledge the clear language of the law as quoted with approval by a federal court. The court wrote that the Farm Bill legalizing hemp overrides the federal Controlled Substances Act definition of “marihuana:”
“Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations.
As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.
According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk. …
However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids.”
And another update, in 2019, from DEA:
“DEA notes that, as the result of a recent amendment to federal law, certain forms of cannabis no longer require DEA registration to grow or manufacture. The Agriculture Improvement Act of 2018, Pub. L. 115-334, which was signed into law on December 20, 2018, changed the definition of marihuana under the CSA.
08/27/2019, DEPARTMENT OF JUSTICE, Drug Enforcement Administration, [Docket No. DEA-392], Bulk Manufacturer of Controlled Substances Applications: Bulk Manufacturers of Marihuana
As amended, the definition of marihuana no longer includes “hemp,” which is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. 1639o(1).
Pursuant to the amended definition, cannabis plant material which contains 0.3 percent or less delta-9 tetrahydrocannabinol (THC) on a dry weight basis is not a controlled substance and does not require a DEA registration to grow. Accordingly, if any of the below-listed applicants have applied for a DEA registration exclusively for the purpose of growing cannabis that contains no more than 0.3 percent delta-9 THC on a dry weight basis, including cannabis that contains cannabidiol (CBD) and falls below the delta-9 THC threshold, the applicants no longer require DEA registration for that purpose.”
Hemp CBD became effectively legal in Minnesota
After all of the above, CBD in 2018 was effectively legal federally if sourced from federally-legal hemp. Hemp is federal-legal if it complies with the federal “Farm Bill” which requires it be state-legal.
And “The Appropriations Act” language prohibits spending funds on federal prosecution; where people are compliant with State law on marijuana and hemp.
So, some state-legal hemp arguably might not have been federally-legal in 2018 (if violating the Farm Bill’s restrictions). But, the Appropriations Act prohibits federal criminal enforcement in any event.
So, in other words, CBD was legal if sourced from “Farm Bill”-complaint-hemp. But now, it’s legal if 0.3 percent THC or less.
Then even if it was not “federally legal,” the “Appropriations Act” language prohibits federal prosecution, as long as it’s:
- state legal-hemp sourced (even if not “Farm Bill” compliant); or
- made from “marijuana” and state legal as part of the state’s medical marijuana program.
Non-cannabis sourced CBD products?
Beware claims that CBD is from a non-cannabis source and therefore legal. Although theoretically possible, claims of commercially available, non-cannabis sourced CBD lack credibility, proof or factual support. It’s just not commercially feasible, at least to date. Beware claims made to the contrary.
IN MINNESOTA
Minnesota State Laws
General rule:
Under 2018 Minnesota law, anything sourced from “marijuana,” was marijuana and a crime to sell or possess in any amount.
But under a change in 2019, any cannabis product 0.3 percent THC of less is now “hemp” and legal to possess.
Exceptions:
- Possession or gifting 42.5 grams or less of plant-form marijuana, “a small amount,” has been “decriminalized.” (Still illegal, but a fine only).
- Possession of marijuana wax, oil, dabs, carts, etc. is still a crime in any amount; under a loophole in Minnesota’s decrim law.
- Marijuana-CBD legally from the Minnesota Medical Marijuana program by a state authorized patient; or medically prescribed, pharmaceutical Epidiolex.
- Hemp-sourced-CBD. if 0.3 percent THC of less is now “hemp” and legal to possess, under Minnesota law.
There is no law that specifically addresses the legal status of CBD itself, in Minnesota. And since 2019, its legal status depends entirely upon its THC level.
Non-“marijuana” sources of CBD: Industrial hemp
The definition is in the Minnesota “Industrial Hemp Development Act.” Minnesota Statutes Chapter 18K (2018):
“18K.02 DEFINITIONS. Subd. 3. “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.
Subd. 4. “Marijuana” has the meaning given in section 152.01, subdivision 9.
18K.03 AGRICULTURAL CROP; POSSESSION AUTHORIZED.
Industrial hemp is an agricultural crop in this state. A person may possess, transport, process, sell, or buy industrial hemp that is grown pursuant to this chapter.“
While Minnesota law is clear; federal laws were a mess
Minnesota law on hemp was cleaner than federal law in that it avoids the convoluted federal “notwithstanding …” layered definitions and non-enforcement laws.
But Minnesota law drew a bright line. Above the 0.3 percent on a dry weight basis THC threshold – it’s “marijuana.” But below that threshold it’s “industrial hemp.”
And “industrial hemp is not marijuana.”
Though, as discussed above, Minnesota should consider increasing the THC threshold to one percent, as West Virginia has done. After all, this would allow safer, quality hemp-CBD. And it would help solve some of the problems we are seeing today with CBD products.
Recommendations. What solutions make the most sense?
- Minnesota: Legalize marijuana for responsible adult use, including small batch home-production commensurate with home-production of beer and wine.
- Federal: Repeal all laws criminalizing marijuana, resume federalism by leaving it to the States. Carve out federal recognition of legal hemp and hemp products, and their free trade in interstate commerce.
- Baby step solutions – detailed above.
DISCLAIMER: Nothing in this article, or this website is legal advice.
Minnesota Hemp CBD law updates:
- New Minnesota Definition of Hemp changes Hemp-CBD Oil legality
- Is CBD Legal Now in Minnesota?
- Hemp cannot support a Criminal Marijuana Charge in Minnesota
About the author
Thomas C. Gallagher is Minnesota’s Marijuana Lawyer, with a criminal defense practice in Minneapolis; and is a Minnesota NORML Board Member.
He frequently writes and speaks on cannabis law topics.