CBD legal status was once a grey area. But since 2019 that grey area has become black letter law.
The Minnesota legislature amended the definition of hemp to the match the 2018 federal statutes’ definition. Effective July 1, 2019, Minnesota Statutes § 18K.02 says:
“’Industrial hemp’ means the plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s 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. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.”
Minn. Stat. § 18K.02, Subd. 3
Implication for CBD legal status
This new Minnesota law creates clear, bright line. In 2020, the THC level determines whether cannabis, its parts or extracts are legal to possess. Cannabis over 0.3 percent THC on a dry weight basis is still generally illegal to possess. (Medical marijuana and prescription THC and marijuana are exceptions in Minnesota.)
But below that threshold, it’s “hemp” and no longer illegal to possess.
CBD Legal: What changed?
The Source Plant rule: Before July 1, 2019, the legal difference between “marijuana” and “hemp” was the THC level of the source plant. For an in depth analysis of the pre-July 1, 2019, CBD legal status, see:
But under the new law, the THC level of the source plant does not matter. Now, the definition draws the line at the THC level of cannabis, its parts or extracts. So the THC level of the source plant no longer matters.
Under the old law, a CBD product made from illegal marijuana was illegal marijuana; even if it contained zero THC. But under the new law, even CBD products from “marijuana” plant-sources are legal to possess. But the THC level must be “not more than 0.3 percent on a dry weight basis.”
Since marijuana source plants are a better source for CBD than hemp; this is good news for CBD consumers. And producers can strip THC out of marijuana-plant resin; for a low-THC product. So the new law makes more sense than the old one.
Beyond CBD
This change also provides new defenses for people facing Minnesota marijuana criminal charges.
Beyond CBD legal status: Under the new law, previously illegal “marijuana” is now legal “hemp;” to the extent that the THC level of its parts or extracts is “not more than 0.3 percent.”
The source plant no longer defines what is illegal to possess.
The new definition of hemp has effectively:
- De-scheduled THC when 0.3 percent or less on a dry weight basis.
- Amended to the definition of marijuana to exclude parts of the plant with 0.3 percent THC or less.
This provides more legal defenses for judges, juries and defense lawyers to consider when questioning a “marijuana” criminal charge. Evidence of identity of the plant or plant-product is even more important now.
One small step for Minnesota . . . CBD legal
While this new law is a welcome baby-step, Minnesota Cannabis laws remain a patchwork of partial criminalization. Let’s quickly review.
Cannabis now legal in Minnesota
- Hemp. Any cannabis product with 0.3 percent THC or less on a dry weight basis, regardless of cannabis-plant source, is now legal to possess.
- Medical marijuana as administered by the Minnesota Department of Health, and its Rules.
- Prescription drugs, including synthetic THC (Marinol, FDA-approved, dronabinol); and (ex-USA) natural cannabis extracts Nabiximols (trade name Sativex) THC and CBD; and Epidiolex (CBD).
- THC is now de-scheduled where THC level is 0.3 percent or less.
- CBD legal. CBD itself was legal to possess. But now, the source plant no longer matters.
Hemp-CBD Status Change: New Minnesota Hemp Definition
The 2019 Minnesota legislature amended the definition of “hemp,” a legal category of the cannabis plant. And though hemp has not been illegal “marijuana” for years in Minnesota; this new law changes the legal status of Hemp-CBD products.
Before the amendment, as long as the source was a hemp plant; THC was legal in any amount, at any concentration level.
And that’s why the early 2019 criminal charges against Lanesboro, Minnesota hemp farmer Luis Hummel should be dismissed; if they haven’t been already. According to news media reports, a prosecutor was charging Hummel with criminal sale and possession; for hemp-CBD oil with over 0.3% THC.
But under the law at that time, it was not a crime to have hemp-CBD oil over 0.3% THC. And that’s good news, at least for Mr. Hummel.
The bad news? The 2019 legislature amended the law, effective July 1,2019. So now, hemp-CBD oil no longer qualifies as legal “hemp” under Minnesota law, unless 0.3% THC or less.
Why? Read on.
Hemp-CBD: plant vs. extracts
The 2019 legislature amended Minnesota Statutes 2018, section 18K.02, subdivision 3, to read:
“Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s 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. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9. Minn. Stat. § 18K.02, Subd. 3 (2019)
Minn. Stat. § 18K.02, subd. 3
The language “including the plant’s seeds, and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not,” was new. This changed the law for hemp-CBD. So, the amended law set a limit of not more than 0.3 percent THC on a dry weight basis; for “the plant’s seeds, and all the plant’s derivatives, extracts.”
But the old law did not. And that’s why under the pre-July 1, 2019 version of the law:
- any amount of THC, and
- any concentration level up to 100% THC was legal;
as long as it was from a cannabis plant with “not more than 0.3 percent on a dry weight basis.” So, as long as it came from a hemp plant, THC was legal.
Problems remain for Hemp-CBD farmers
Minnesota state and federal policy-makers seem to agree, that hemp-CBD products should be broadly legal and available to consumers. And they are still developing a civil regulatory framework. But the policy intent is clear. So we, at least, don’t want hemp-CBD products to be a “crime.”
The new hemp definition fails to account for the hemp-CBD product manufacturing process. And the new law seems to create an unintended trap for Minnesota’s Ag community. Here is a simplified version of the hemp-CBD product manufacturing process:
- Farmers grow cannabis plants with “not more than 0.3 percent on a dry weight basis” (“hemp”); then,
- Process the hemp to extract the flower oil, which has a usable concentration of CBD and other cannabinoids: then,
- Dilute the hemp oil concentrate to ensure the consumer product is in compliance with a 0.3% THC legal threshold.
The problem? Though steps one and three above are within the 0.3% THC limit, step two is not. Because making hemp-CBD oil may require the intermediate step, at 10 times or more the 0.3% THC consumer-product threshold.
Simple solution: Hemp-CBD
The best solution would be legislative. The new laws should clarify that Minnesota manufacturers can lawfully have an intermediate extract from hemp with over 0.3% THC; as long as it is not for consumer products.
So the legislature should amend Minnesota’s law again. And the legislature can amend the laws to make clear that hemp producers may have intermediate materials over 0.3% THC; as long as no consumer end-product is over 0.3% THC. So this can prevent miscarriages of justice for Minnesota’s law-abiding hemp farmers and agricultural community.
Until then, hemp farmers may need to get it done out of state. And this needlessly drains agricultural money out of the Minnesota economy, costing jobs and reduced tax revenues.
About the author
Thomas Gallagher is a Minnesota criminal attorney. He represents clients facing criminal charges of every kind. And he regularly represents clients facing marijuana charges.
He is also a Board Member of the non-profit Minnesota NORML.
And Minneapolis Attorney Thomas Gallagher regularly teaches on criminal law and cannabis law topics, including Hemp-CBD.
More: CBD legal
Minnesota Marijuana Laws
Articles on Marijuana Defense & Reform in Minnesota
Identity – Marijuana, Resin, THC, Plants
Low-THC Hemp Products Legal in Minnesota
Religious use of marijuana win: Minnesota Rastafarian