Learning From Minnesota’s Mistakes

This recent legislative development should serve as a cautionary tale for other states trying to regulate intoxicating hemp-derived products.

Legal Marijuana ConceptFor the past month, a Minnesota law that legalized certain intoxicating hemp-derived THC products has been the source of many memes and witticisms on social media.

According to local and national reporting, the enactment of this new law resulted from confusion by state legislators who failed to understand the implications of the new law. Although the statutory language expressly authorizes the sale of edible products infused with “non-intoxicating cannabinoids” in the state, the new law contains a provision (i.e., Subd. 5a(f), which was added to Minnesota Statute 151.72) that effectively legalizes all forms of THC-infused edible products with little regulatory oversight.

Specifically, the Minnesota law authorizes the sale of edibles and beverages infused with hemp-derived cannabinoids provided, in part, that these products contain no more than 0.3% of any THC as well as no more than “five milligrams of any tetrahydrocannabinol in a single serving, or more than a total of 50 milligrams of any tetrahydrocannabinol per package.”

This concentration threshold is problematic because it roughly represents half the concentration generally allowed in regulated cannabis edibles, which means consumers could very easily get high on these supposedly “non-intoxicating cannabinoids”-infused products.

State cannabis reform advocates welcome this legislative change as they view it as a step toward the legalization of recreational cannabis in the state. On the other hand, GOP members opposed to adult-use legalization, but who voted in support of this law, are now reconsidering their position.

For example, Senate Human Services Reform Finance and Policy Committee Chairman Jim Abeler (R) told the Minneapolis Star-Tribune that he thought the bill was strictly limited to putting guardrails around the sale of delta-8 THC products, and suggested the legislature repeal the law — Abeler’s confusion regarding the scope of the new law is clearly noticeable in this legislative recording (Following the unanimous passage of the amendment, the chairman jokingly said: “That doesn’t legalize marijuana — we just didn’t do that, did we?” To which, Rep. Tina Liebling (D), responded, “Oh, are you kidding? Of course you have. No, just kidding. Next, we’ll do that next, OK?”).

The accidental legalization of these intoxicating products is not the only problem with this new Minnesota law. Other concerns include:

Sponsored

  1. The absence of a licensing scheme to produce, distribute, and sell THC products. Minnesota currently requires a license to cultivate and process hemp but does not regulate the manufacture of finished products.
  2. The failure to impose labeling requirements to warn consumers against the risk of intoxication from ingesting products in compliance with the newly adopted THC concentration threshold.
  3. The lack of inspection and testing requirements conducted by state regulators.
  4. The delegation of regulatory authority over the potency, packaging, and marketing of these products to the Minnesota Board of Pharmacy. This decision is surprising because the Board of Pharmacy’s current function is limited to regulate — you guessed it — pharmacists and pharmaceuticals, not finished products intended for human consumption. Other state agencies, such as the Department of Agriculture, which regulates the production and processing of hemp, and the Department of Health, would probably be better positioned to handle this task. In addition, the Minnesota Board of Pharmacy, which is only composed of 22 staff, is already struggling to fulfill its existing administrative duties, so maintaining proper oversight over these products will be challenging.

In response to this rushed, not-so-well-thought-out piece of legislation, several Minnesota cities took charge by enacting moratoria that temporarily ban these products. These local restrictions are meant to buy them some time to carefully develop their own sets of regulations, including zoning restrictions and licensing fees.

Pieces of legislation like this one are concerning because they merely put a bandage on the growing proliferation of unregulated and unsafe hemp-derived products. By enacting poorly drafted laws that fail to comprehensively address the regulation of finished cannabinoid products, lawmakers run the risk of creating loopholes that can further jeopardize public health and safety and result in political backlashes that could halt cannabis reforms.

This recent legislative development should serve as a cautionary tale for other states trying to regulate intoxicating hemp-derived products. State regulators need to educate themselves about hemp and hemp-derived cannabinoids by consulting with hemp experts and stakeholders as well as other state regulators that have legalized these products, to understand and appreciate the complexities and nuances of the plant and its derived products. This, in turn, will enable lawmakers to craft well thought-out laws and regulations that will not only protect public health and safety but will also give good actors a chance to thrive and contribute to the country’s economic development.


Sponsored

nathalie bougenies headshotNathalie Bougenies focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. For the past four years, Nathalie has helped clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises domestic and international clients on the sale, distribution, marketing, labeling, and importation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s “Marketplace.” She also authors a weekly column for “Above the Law” that features content on cannabis policy and regulation. For four consecutive years, Nathalie has been named Rising Star by Super Lawyers.