In 2022, a new Minnesota law clarified that low-THC hemp products, including edibles, are legal in Minnesota. What are the details of that law? How did the law come about?
Minnesota Statutes §151.72 Certain Cannabinoid Products
This 2022 statute clarifies that certain cannabinoid products are lawful to sell and possess. What are those certain cannabinoid products?
Cannabinoids are compounds found in the cannabis plant and most animal organisms. They can also exist as synthetic compounds. The most well known cannabinoids today are Delta-9-THC, which can have a psychoactive effect at the right dosage, and Cannabidiol (CBD) which does not cause a “high” effect. And other than THC and CBD, scientists identify more than 100 other cannabinoids.
“Certain Cannabinoid Products” – Low-THC Hemp Products
“a product containing nonintoxicating cannabinoids, including an edible cannabinoid product, may be sold for human or animal consumption only if all of the requirements of this section are met, provided that a product sold for human or animal consumption does not contain more than 0.3 percent of any tetrahydrocannabinol and an edible cannabinoid product does not contain an amount of any tetrahydrocannabinol that exceeds the limits established in subdivision 5a, paragraph (f).”Minnesota Statutes §151.72, Subd. 3 (a)
“An edible cannabinoid product must not contain more than five milligrams of any tetrahydrocannabinol in a single serving, or more than a total of 50 milligrams of any tetrahydrocannabinol per package.“Minnesota Statutes §151.72, Subd. 5a (f)
The statute contains other requirements relating to the product, including testing, labeling and packaging. And it distinguishes products under this statute section, from medical products and other food products (that do not contain the certain cannabinoids it defines as its scope). Minnesota Statutes §151.72.
How did this Low-THC Hemp law come about?
No surprise: This statute was passed into law through the normal Minnesota legislative process as part of a Health Omnibus Bill. Contrary to some early news media reports, the Bill was no more a “surprise” than any other Bill going through legislature’s deliberative process. The law’s legislative history shows this.
Necessary: After hemp was re-legalized, both federally and in Minnesota, the most common interpretation of the law’s application to hemp products was “the source rule.” Under the source rule interpretation, a hemp product was legal where the product’s source was “hemp.” The federal and Minnesota definitions of hemp are cannabis with a Delta-9 THC level of 0.30% or less by dry weight volume. This had the effect of removing D-9-THC from the state and federal Controlled Substance Schedules, if “hemp.” (The Minnesota and federal laws redefined “marijuana” as cannabis over 0.30% D-9-THC.)
Loveless Case Creates Chaos and Confusion for Low-THC Hemp Products
Loveless Case: Then, in Minnesota, the Minnesota Court of Appeals interpreted the law differently, in State v Loveless, 966 NW 2d 493 (Minn App 2021), throwing the low-THC hemp products marketplace into chaos and confusion. The court wrote:
“To prove beyond a reasonable doubt that a defendant is guilty of unlawful possession of a liquid mixture containing tetrahydrocannabinols in violation of Minnesota Statutes section 152.025, subdivision 2(1), the state must introduce evidence that is sufficient to prove that the mixture contains tetrahydrocannabinols. The state need not prove that the mixture contains delta-9 tetrahydrocannabinol in a concentration greater than 0.3 percent on a dry-weight basis.“[emphasis added]
“Unlike the definition of marijuana, the inclusion of tetrahydrocannabinols in Minnesota’s Schedule I does not make any exception for hemp or for a substance or mixture that has a concentration of delta-9 tetrahydrocannabinol that is 0.3 percent or less on a dry-weight basis.”[emphasis added]
The court cited the Minnesota Controlled Substances mixture law, which effectively makes the entire weight of a “mixture” punishable, even if containing only trace amounts of an illegal drug (e.g., the water in your toilet tank, containing trace amounts of legend drugs).
Next, the court cites repeatedly the “dry-weight basis” language in the definition of hemp. What is a percentage of D-9-THC (or anything) “on a dry-weight basis” when the material is a liquid? How do we determine a dry weight basis percentage of a liquid?
Finally, the court points out that though the Minnesota legislature changed the definition of marijuana at the same time it re-legalized ad defined hemp; it did not explicitly exclude D-9 THC from Minnesota’s Controlled Substance Act Schedules. This, combined with the mixture law, led the court to decide that though plant-form hemp was legal, hemp products containing even trace amounts of D-9 THC, were not.
What about hemp food products & hemp-CBD products with low levels of THC?
This was now a big problem. Would police arrest the cashier at the grocery store for selling hemp-protein smoothie mix, or hemp-CBD skin products? Under the court’s Loveless decision, they could and arguably should.
We needed a legislative solution to this absurdity. We needed a new law to at least restore the pre-Loveless status quo for low-THC hemp products. The consensus view was that this was not a big deal, and should not be controversial. This statute was the result of the normal legislative process.
Statute Removes THC from Minnesota Controlled Substance Act Schedules
“Products that meet the requirements of this section are not controlled substances under section 152.02.”Minnesota Statutes §151.72, Subd. 3 (d)
And Minnesota Statutes §152.02 sets forth Minnesota’s Schedules Of Controlled Substances, from Schedule 1 through Schedule 5. Alcoholic beverages are not listed there, but marijuana and D-9_THC are currently still listed in Schedule 1.
As a result, the “Certain Cannabinoid Products” defined in Minnesota Statutes §151.72, are explicitly excluded from Minnesota’s Schedule 1, and other Minnesota Controlled Substance Acts Schedules. See our article: Removing Marijuana from Minnesota’s Schedule 1 Law.
Low-THC Hemp Edibles and Drinks
Now that Low-THC Hemp products like edibles and drinks are legal and available in Minnesota, has the sky fallen? Not yet.
We do need to re-legalize marijuana and its psychoactive ingredient Delta-9 THC in Minnesota, completely and fully. Compared to edibles, inhaled marijuana is a safer alternative for many, especially for novice users. Why? Because unlike alcohol, which has a slow metabolization rate; marijuana and THC have an extremely rapid metabolization rate when inhaled (vaped or smoked). THC in edibles and drinks take more time to initially enter the bloodstream, prior to the body metabolizing (burning off) the psychoactive D-9 THC.
If you would like to help re-legalize marijuana and THC, consider supporting or joining with Minnesota NORML, or another Minnesota legalization group.
About the Author
Thomas Gallagher is a Minneapolis Criminal Defense Lawyer and serves on the Board of Directors of Minnesota NORML. Through decades of experience defending people facing marijuana “crimes” charges, he witness the needless trauma and harms those laws produce. That is why he volunteers time to change those laws.