Ask us anything about Minnesota's new THC edibles law

Bags of gummie snacks containing THC
A customer shows the products she bought from Nothing But Hemp in St. Paul. Some of the products contain THC, which became legal under 5 milligrams per serving in Minnesota on July 1.
Grace Birnstengel | MPR News

As of July 1, 2022, edibles containing small amounts of hemp-derived THC are legal in Minnesota.

Under the law, Minnesotans can buy food and beverages that contain up to 5 milligrams of THC per serving, with a limit of 50 milligrams per package. THC is the psychoactive compound that delivers the “high” associated with marijuana. This is the biggest step Minnesota has taken towards legalizing recreational marijuana.

MPR News host Angela Davis spoke with two lawyers who specialize in cannabis law about Minnesota’s new law, how it compares to cannabis laws in other states and what all this means for Minnesotans.

Guests:

  • Jay Wexler is a professor of law at Boston University. He is the author of the forthcoming book, “Weed Rules: Blazing the Way to a Just and Joyous Marijuana Policy.”

  • Jason Tarasek is an attorney, the founder of the Minnesota Cannabis Law firm and a board member of the Minnesota Cannabis Association.

Below are highlights from the discussion. Quotes have been edited for length and clarity. Listen to the full conversation using the audio player above or by searching MPR News with Angela Davis wherever you get your podcasts.

What exactly does this new law in Minnesota do and what doesn't it do?

Tarasek: It's a groundbreaking piece of legislation. For the first time ever in Minnesota, consumers can purchase THC infused food and beverages. Of course that THC needs to be hemp-derived which makes us unique in the country. So we're not a full adult use marijuana state but we have taken a big step towards that. There are no restrictions on who can sell and where it can be sold.

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What’s the difference between hemp and marijuana?

Tarasek: It’s kind of confusing. Cannabis is sort of the catch all term and that can refer to both hemp and marijuana which many people are surprised to learn is the same plant. So the distinction is a legal one.

The federal law and regulations and the state law and regulations around this say hemp is defined as a plant or its derivatives containing 0.3 percent delta 9 THC or less. Anything over that threshold is considered marijuana. So that's the distinction but it's the same plant, looks very much the same, smells the same, the THC is the same but that is the distinction.

What kinds of products are allowed under this new law?

Tarasek: The thing that retailers were stocked for since this was sort of a surprise to a lot of us were gummies. So most people right now are going to be consuming gummies that they can buy in packages up to 50 milligrams. But the serving size is recommended to be 5 milligrams. And there's no limit on how many bags you can buy.

Have you kept in touch with those store owners? How are they doing two weeks out?

Tarasek: They were not necessarily stocked for the demand. And they sold out. The retailers that I spoke to sold out in a matter of days. And so they are scrambling now trying to get more product. I am doing my best to connect them with gummy manufacturers and other states. So we're hoping to have them restocked soon. But you know, it was pretty obvious. There was a lot of pent up demand among Minnesota consumers for this. And I think the politicians are going to take take note of that.

Tell us more about the packaging.

Tarasek: The legislators, to their credit, went to great lengths to make sure this is an adult use product. So this can't be marketed to children. You can't manufacture them. You can't call them like fruit loop gummies are things that would appeal to children. They're tamper proof. So we've taken strides to make sure they don't fall into the hands of children or teens.

What stands out about this law compared to those in other states?

Wexler: The law is completely unique among all cannabis legalization laws in the states so far. What happens in pretty much every state that's legalized for recreational use up till now is the people of the state or the legislature of the state basically vote to make cannabis legal. And then they delegate authority to some sort of agency.

And that agency takes a long time coming up with regulations that authorize retailers and cultivators to become licensed, and they get a license. And then they're regulated by the state pretty closely about how much they can grow and what conditions they have to grow under, what environmental regulations they have to follow. And retailers have to follow a whole set of regulations as well.

Then there's a long process where companies apply to get licenses. And there's usually a bunch of controversy over who gets the licenses and then it's a long process. Finally, the stores open up and you go in there and the only thing you can get in the in the stores are marijuana products. And the people who are working there are trained bud tenders who know who can advise customers about what they're getting. So this Minnesota approach is completely different.

Tarasek: [In Minnesota] there are no restrictions on who can sell and where it can be sold.

For folks who are concerned about safety, should we be?

Wexler: I don't know exactly about how this works in practice. But there's a testing requirement from what I understand, and manufacturers have to contract with a lab in order to get their products tested.

But the results don't necessarily have to be filtered through or sent to any kind of government agencies, which makes it very different from other states. So it’s hard to know if those testing labs, whether they're good, I assume they're high quality, but it's a little different from other states.

Tarasek: The THC has to be derived from certified hemp. So in Minnesota, we have a hemp program where the growers and the processors are licensed. And then, at the point of sale, the actual product has to confirm that indeed this did go through the correct process that checks those boxes, and that it did meet the testing requirements. So again, it's under the 0.3 percent delta 9 THC threshold.

Caller question: What about delta 8? And does a consumer of THC in Minnesota have any guarantee that there's any safety in this product?

Tarasek: Delta 8 THC, which was getting extremely popular because it sort of benefited from a loophole in both the federal law and the state law that put restrictions on delta 9 THC. So a lot of people said, and frankly, there are some courts that agree with them, that delta 8 THC was fully legal everywhere, so long as it was hemp-derived and you're correct that that delta 8 THC occurs in very tiny amounts naturally in the plant. But entrepreneurs saw an opportunity and they are using a chemical process to extract delta 8 out of CBD. And there were some health concerns about that because people were using it in vapes and there wasn't any regulation around that.

And this law actually aims to address that because this law does not allow for vapes and allows only point 0.3 percent delta eight THC. The law is it references THC generically, so you can have delta 8, you can have delta 10. I'm expecting most of these products are going to have delta 9 THC, which is the more traditional THC because you don't need to go through that extra chemical induced process to extract it. So I hear what you're saying. I believe that this law was drafted by the legislators and the Board of Pharmacy to address the health concerns about delta 8 and I expect the products you're gonna see food and beverages are gonna mostly contain hemp derived delta 9.

What is the average cost?

Tarasek: I wish I knew the answer, but I think it's relatively inexpensive, $20 or so for a bag.

Caller question: If you get pulled over or if you're going to a concert how does this new law effect possession requirements?

Tarasek: These hemp derived products, they're legal anywhere. You can possess them, you can use them, you can sell them. I think perhaps it's obvious to everyone that there's still work to be done here because there's no licensing requirement.

We're not capturing any special tax through the sale of these products. We don't have a cannabis control board. All those ideas and regulations exist in the adult use marijuana legislation that the DFL controlled House passed a few years ago. And I expect that when the legislature reconvenes here in Minnesota in January, they may be trying to extract some portions of that law and that the Republican controlled Senate refused to pick up because I think everyone is going to recognize that these hemp derived products perhaps require more regulation. And we need, perhaps, a little more guidance on how this law is gonna be allowed to proceed.

Wexler: Sure. That's a major issue around the country in states that have legalized cannabis for recreational and medical use. Somebody uses cannabis off-site for a medical purpose that they absolutely need to help them with, say Crohn's disease, or PTSD or something like that. But the employer can still in most states test employees for the presence of THC in their bloodstream, which does not tell you when the person has consumed THC. THC stays in the bloodstream, or stays in the body for for up to 30 days. So even if you test positive today, it doesn't mean that you had just used THC, you could have used it a week ago or so.

And so people do get fired regularly for using cannabis off the job. And there have been many cases in different jurisdictions about whether that's OK or not. I don't know where Minnesota was stands on it.

Tarasek: Minnesota's Medical program has legislative protections for people who consume medical cannabis, there's no such similar protection for people using these new products. So people need to be careful.

Caller question: Are any of these over the counter products equivalent to medical cannabis products, for someone who just doesn't want to be part of the state medical program?

Tarasek: This is hemp-derived THC in very small amounts, so it's not going to compare whatsoever to the products that would be available through the medical program. There are cannabis pharmacists who work for our medical marijuana dispensaries who could advise you on this, I expect it may provide some relief. But I am not a cannabis pharmacist.

Wexler: There's so much that we don't know about THC and CBD’s medical benefits, because there just hasn't been as much research as we would have liked for the last 40 years, the federal government has made it illegal, largely, to research the benefits of cannabis. And so, we're just now I think learning which strains and which forms of THC and CBD are effective for which conditions. And so that’s partially a problem that’s linked to the ongoing prohibition at the federal level. And hopefully, as that sort of loosens up over time, we're gonna learn a lot more about which strains work for which conditions but it is frustrating.

Caller comment: If you are not a U.S. citizen, then you still need to worry about federal rules, because it can affect your immigration status.

Wexler: That's absolutely right. The federal government continues to make all cannabis illegal except for hemp and I think an open question is about what federal law says about a unique thing like Minnesota’s law. I'm sure the intent of the Federal Congress would be to keep those products illegal.

There’s lots of discussion about alcohol consumption compared to the consumption of cannabis products.

Tarasek: I get some weird looks when I say cannabis is safer than alcohol because it is so baked into our society. You know, alcohol is celebrated and there's such a stigma around cannabis. But the slogan that worked in Colorado when they pass their ballot initiative in 2012, was that cannabis and marijuana in particular is safer than alcohol. I'm not going to tell you that marijuana is safe or healthy, but is it safer than alcohol, 100 percent. And there is a culture shift underway certainly among the millennials where they are are not consuming alcohol like older generations did. And there's a transition going on culturally away from alcohol and toward THC. And this new law in Minnesota gives consumers an alternative that they did not have before. And it is in the interest of public health. We banned vapes, I think out of the interests of public health and allowing more THC in the marketplace here in Minnesota is a public health initiative.

Wexler: What we really need I think, are places to socially use cannabis, the sort of equivalent of the bar. And those are referred to as social use establishments or cannabis cafes. Some states allow for them, but only in a very sort of begrudging way. And very few have opened across the country, a few in California, a few in Colorado, here and there. But until that happens, I think it's going to be hard to normalize cannabis. So I think it's really important that legislatures and state agencies push for social places to use cannabis, so that we can use cannabis instead of alcohol and still have that social gathering together.