CBD legal status was a grey area. But since July 1, 2019, that grey area has become black letter law.
Minnesota’s legislature passed a new law amending the definition of “hemp” to the match the 2018 federal statutes’ definition.
The new law, effective July 1, 2019, Minnesota Statutes § 18K.02 “DEFINITIONS,” says:
“Subd. 3. “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.”Minnesota Statutes §18K.02, Subd. 3, effective July 1, 2019
Implication for CBD legal status in Minnesota
This new law creates clear, bright line.
Now, 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 now “hemp” and no longer illegal to possess.
CBD Legal: What changed?
Before July 1, 2019, the legal difference between “marijuana” and “hemp” was the THC level of the plant. For an in depth analysis of the pre-July 1, 2019, CBD legal status, see our CBD, Hemp & Law in Minnesota.
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.
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 . . .
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. Marijuana 0.3 percent THC or less is now legal to possess.
- Medical marijuana as administered by the Minnesota Department of Health, its Rules and Minnesota Statutes.
- Prescription drugs, including synthetic THC (Marinol, FDA-approved, dronabinol); and natural cannabis extracts Nabiximols (trade name Sativex) THC and CBD; and Epidiolex (CBD).
- THC is now effectively de-scheduled where THC level is 0.3 percent or less.
- CBD legal. CBD itself was and still is, legal to possess. But now, the source plant no longer matters.
When Cannabis is still illegal to possess in Minnesota:
- Marijuana. Any cannabis product with over 0.3 percent THC on a dry weight basis, regardless of cannabis-plant source.
- Plant-form medical marijuana. Minnesota’s limited medical marijuana law currently allows only extracts of the resinous form. Low-cost plant form medical marijuana is still off limits for low-income and disabled Minnesotans.
- THC. Minnesota has its own Controlled Substances Act, Chapter 152. And Minnesota laws still list THC in Minnesota’s Schedule 1, along with heroin. But Minnesota can remove THC and marijuana from Minnesota’s Schedule 1, in recognition of the currently accepted medical use.
The real solution starts with removing marijuana and THC from all criminal laws. But in the meantime, we should protect our people from legal injustice as best we can.
About the author
Thomas Gallagher is a criminal defense attorney in Minneapolis, representing clients facing every kind of criminal charge.
For decades he’s been a member of the NORML Legal Committee. And he’s working to legalize marijuana for responsible adult use, by organizing supporters, engaging the political process, speaking and writing.
And he’s a founding Board Member of Minnesota NORML, since 2011.