The architects behind a now-controversial bill that legalizes the sale in Minnesota of intoxicating compounds found in hemp plants weren’t certain Tuesday whether to admit that the bill was done mostly under the radar or was a result of transparent legislating.
At different times, it was both.
“Sometimes legislation benefits from a lot of publicity, sometimes legislation benefits from the ability to do the work more quietly,” said House Majority Leader Ryan Winkler, comparing this bill to his House File 600 that would have legalized and regulated marijuana for recreational use and that passed the DFL-controlled House in 2021. Senate Republicans did not take up the measure.
The bill first stood alone as House File 3595 but then was incorporated into a large health policy and finance bill — House File 4065 — and signed by Gov. Tim Walz June 2. In the month since, sponsors did little to explain the ramifications of what had been billed as a correction to federal law that inadvertently permitted the sale of some intoxicating edibles derived from industrial hemp.
Winkler, a DFLer from Golden Valley who is currently running for Hennepin County attorney, said the bill went to several committees and a conference committee that ultimately added it to a 500-page omnibus bill.
“There was time for anyone to take a look,” Winkler said. “But drawing attention to this change in the regulatory structure, I don’t think would have helped the bill pass. Sometimes having more public attention amps up the political pressure that certain people in the other party might feel.
“We had a mess to clean up. I don’t know whether more publicity early on would have made it possible to pass the bill or not,” he said.
But gaps in the bill that are becoming apparent as the law is implemented might have been identified with more hearings and debate. Prime sponsor, Rep. Heather Edelson, DFL-Edina, said the bill doesn’t include taxation of the newly legal products and lacks enough regulation and enforcement — items she said she would now like to remedy.
“I think if we’d put in licensing structures and fees and did all of that, it wouldn’t have passed,” she said. Regulation and enforcement might now be up to local governments.
The Senate Republican co-chair of the health omnibus bill conference committee, Sen. Jim Abeler of Anoka, said he wasn’t aware of the scope of the hemp language and would like to reconsider what passed. But Senate Majority Leader Jeremy Miller, R-Winona, said he was aware and thinks the law should be given a chance to work.
There is also indication that the bill grew in scope as it moved through committees. What started as a way to get a hold of an unregulated market of a product on the edges of legality became something more.
“We knew that we had to address this regulatory issue,” Winkler said. “We did not know where we were going to get in the end with this bill. We didn’t know what the final conclusion was going to be.”
Jason Tarasek, an attorney and lobbyist specializing in marijuana law, said the issue began with a December state Supreme Court case that pointed out the gap in the law regarding THC in nonliquid form derived from industrial hemp. Minnesota v. Loveless saw the Supreme Court let stand a court of appeals ruling that overturned a conviction of possession of leaf material that contained THC because the state did not show that it wasn’t hemp. It upheld, however, a similar conviction involving liquid used in vaping.
In an article on the case for the Hellmuth & Johnson law firm, attorney Carol R.M. Moss wrote, “The Loveless case identified a loophole from when Minnesota created its hemp program that could lead to significant ramifications.
“For an industry that is already dealing with incomplete or vague laws and regulation, the Loveless loophole needs to be closed as quickly as possible. Doing so will allow the cannabis and hemp industry to continue to grow and prosper in Minnesota.”
“It started out as a Loveless fix and then it just kept evolving. It kind of took on a life of its own and became something different,” Tarasek said. “I’m not complaining but I’m surprised it got through. It’s not legalizing recreational marijuana but it’s a big step toward that. It’s going to allow people to consume recreational cannabis in a way that people in recreational markets have been doing.”
The strategy of keeping the impact of the bill quiet to assure passage should have ended after it was signed by Walz. But even after it passed, there was little explanation of the sweep of the bill. Only in the days before it was to take effect on July 1 did it become somewhat clear that Minnesota had legalized a recreational marijuana product that is derived from hemp, rather than the related marijuana plant. And the regulation of the products is skimpy, left to the state Board of Pharmacy that has limited staff to patrol what could become a huge market.
No licensing is required.
Now, in an attempt to belatedly provide some oversight, Edelson said Tuesday she is meeting with local government representatives to see if local ordinances and local enforcement can step in where the Legislature did not.
HF 4065 is nearly 500 pages long — a now-typical omnibus bill that contains a session’s worth of work in the topic area of health and human service issues. Its lengthy description — the title of the bill — says that it touches on state Department of Health provisions, care for seniors, preventing homelessness, organ donations and child protection. It also notes that it deals with “nonintoxicating hemp regulation.”
But the bill itself, while correcting a gap in a 2019 state law implementing the 2018 federal legalization of the cultivation of hemp plants, permits the sale of intoxicating edibles using compounds derived from those plants. It limits the level of the intoxicating THC to 5 milligrams per serving and limits the number of those products to 50 mg per package.
The 2018 federal law permitted the growth of hemp and allowed edible products to be made from the plant. That law said hemp could be grown legally as long as it contained less than 0.3 percent THC. But the same bill defined THC as the substance called delta-9 which is found in marijuana plants, but didn’t mention delta-8 found in hemp. By oversight, the law apparently allowed delta-8 THC to be extracted from another chemical found in hemp — CBD — and processed to increase its potency.
Backers say the new law is an improvement over what was in place before — essentially no regulation, no age limits, no bans on appealing to children via packaging and shapes of edibles. While these products might not have been apparent in stores that sell CBD, they were often available. But the confusion about the new law that emerged in the closing days of June, and continues, could be blamed on the lack of public discussion of the bill — before or after its passage.
Angela Dawson, who co-founded a cooperative hemp farm in Pine County, said the way the bill was considered and passed might not have been ideal.
“But sometimes it takes disruption and chaos to create clarity,” she said.