The prime House sponsor of Minnesota’s recreational marijuana law says he will take another look at a controversial — and confusing — provision that appears to tell craft brewers, cideries and bars they can’t sell alcohol and THC beverages to the same customer on the same night.
The law in fact tells retailers they cannot serve a THC beverage to a customer who appears intoxicated or has drunk alcohol within five hours. But even though that provision doesn’t take effect until 2025, many alcohol retailers think it restricts their sales already.
Rep. Zack Stephenson, DFL-Coon Rapids, told those gathered for a forum on the new law that the language of the bill might not serve the intent of sponsors.
“We were trying to solve a problem, which is that there is pretty good evidence that the effects of THC and alcohol together are much stronger than either individually,” Stephenson told the forum sponsored by the legal and lobbying firm Winthrop and Weinstein. He said he was particularly concerned with how it could affect someone’s ability to safely drive a vehicle.
Sometimes called crossfading, the mixing of the two intoxicants can intensify the effects of both.
But Stephenson said he has heard from those in the hemp beverage industry about the practical impacts of that rule.
“We took the best shot at it, and there will be continuing discussion, and maybe it results in that changing and maybe it doesn’t,” Stephenson said. “We did the best we could. We’re gonna see how those rules play out in reality and there definitely will be modifications.”
Many breweries, cideries, bars and restaurants think the five-hour rule is already in effect for hemp-derived beverages that began appearing after the state legalized low-potency hemp products in July of 2022. It is not in effect, confirmed Chris Tholkes, the director of the state Office of Medical Cannabis that has temporary jurisdiction over the hemp-derived segment of the cannabis market.
When asked about how his customers are responding to the 10% cannabis tax that began July 1, Minneapolis Cider, Co. owner Jason Dayton said he’d heard few complaints. But he said he is most concerned about the five-hour rule.
“We expect the five-hour rule will have the biggest impact on our business since it will likely have a significant impact on on-premise consumption,” he said. “We currently don’t restrict guests from consuming both cannabis and alcohol in a single visit as long as they are consuming responsibly.”
“If it does come into effect as written, we will ask guests to choose between alcohol or cannabis and stamp their hand,” Dayton said. “Our hope is the Legislature will revisit this next year since it’s pretty impractical — how are we supposed to know if someone who just walked into our building had a beer 4 hours ago?”
The confusion comes when readers of the 360-page law don’t notice the varying effectiveness dates of different sections. Hemp-products are governed by temporary rules that took effect July 1. Permanent law changes regulating the products will take effect in March of 2025, likely at the same time that administrative rules written and approved by the new Office of Cannabis Management take effect.
“That’s something that we definitely want to look at in this upcoming session,” said Bob Galligan, the legislative director of the Minnesota Craft Brewers Guild that includes members who are making THC-based drinks. “There’s nothing that says we can’t serve alcohol and THC currently.”
But media reports raised the specter that the rule was already in place, something Galligan said he has been struggling to refute. He reminds members of the delayed effectiveness date but also stressed that they remain responsible for not serving people who are obviously intoxicated.
“The more I think about it, the only way to know if someone is lying about having drunk in the past five hours is … you guessed it. If they are acting intoxicated,” Galligan said. “So really the five-hour rule is putting the cart before the horse.”
It is one of several aspects of the bill that have caused confusion because of different effectiveness dates. Tholkes said they have a flow chart on the wall of the office in an attempt to keep them straight. Early on, some people mistakenly concluded that possession and use of marijuana as well as the right to grow plants at home took effect July 1 because that was the overall effectiveness date of House File 100. But the changes to criminal law that repealed the sanctions for use, possession and home grow had an Aug. 1 date.
And a section that makes it illegal for anyone to smoke and vape marijuana in multi-family housing also does not become law until March 1, 2025.
The hemp-derived edibles section is especially prone to misunderstanding because it contained temporary rules that could stand in quickly for the existing hemp market once the law took effect. That was needed because hemp products had been legalized in July of 2022 but with little regulation, no licensing and no taxation.
But the law then contains permanent rules that take effect in March of 2025 when the first recreational marijuana stores are expected to open. That’s where the so-called five-hour rule is contained:
“… a lower-potency hemp edible retailer with an on-site consumption endorsement may not: (1) sell lower-potency hemp edibles to a customer who the lower-potency hemp edible retailer knows or reasonably should know is intoxicated or has consumed alcohol within the previous five hours; (2) sell lower-potency hemp edibles that are designed or reasonably expected to be mixed with an alcoholic beverage …”
Most of the early THC beverage makers were already brewing beer or making cider. The THC products are added parts of their product lines and their tap rooms are allowed to sell both. Being required to sell only alcoholic beer or cider to one set of customers and only THC beverages to another set of customers is a hassle, they say. Some are using wrist bands or hand stamps to distinguish which customers are drinking which products.