An apparent loophole in Minnesota’s new recreational marijuana law might be allowing some hemp retailers to sell raw cannabis flower with THC levels above the current 0.3% limit more than a year ahead of when marijuana can be legally sold in the state.
During an episode of a national cannabis-related podcast, Chris Tholkes, the director of the Office of Medical Cannabis, said her office lacks the legal authority to inspect raw flower as it goes about regulating hemp-derived products. Because raw flower — the plant that can be dried and burned to release the THC — is not a processed product like those made from THC extracted from the hemp plant, Tholkes’ inspectors lack jurisdiction, she said. The office can’t take samples to test whether they exceed the 0.3% definition.
The new Office of Cannabis Management also lacks authority because it will only regulate cannabis sales once retail licenses have been issued. Those aren’t expected to be ready until March of 2025, according to the office.
“Our regulatory authority is over hemp-derived cannabinoid products, and that is defined as extracted products,” Tholkes told Colorado consultant and lawyer Jordan Wellington on his podcast Weed Wonks. “It’s the edibles, the beverages, the topicals. It’s not flower.
“We’re seeing lots of hemp flower — doing air quotes — out in the marketplace, and we don’t have the regulatory authority over that flower,” she said. “We just hear everyplace we go into: ‘It’s hemp, it’s legal, Farm Bill.’ Unless we can see that the flower has an extracted product added to it, then it becomes our authority.”
Tholkes said the state is in an interim period where the Office of Cannabis Management hasn’t issued licenses and the Department of Health regulates extracted hemp products.
“It sort of leaves it up to local law enforcement. And quite honestly, local law enforcement in Minnesota is confused about what they should be doing,” Tholkes said. “We’ve decriminalized. They know that adult use is on its way. They know we have these hemp products, but they know that we are regulating the hemp products. So there is a little bit of confusion about what local law enforcement should be doing.”
But Tholkes said it is unfair to hemp retailers who are trying to follow the law to see that others can engage in illegal sales of cannabis flower with higher THC concentrations that meet the definition of marijuana and not be stopped by regulators.
“We’re in a position of ‘pick your battles,’ ” Tholkes said. “We’re gonna focus on the products we have regulatory authority (over) and try to explain in simple terms to folks why we don’t have regulatory authority over some other products — which is often a dissatisfying answer for folks who are trying to be good operators in the field and see their neighbor doing things they think they shouldn’t be doing.”
Sen. Lindsey Port, the Burnsville DFLer who is the prime Senate sponsor of the 2023 recreational marijuana bill, said via text message that she wasn’t aware of Tholkes’ concerns but would ask Senate attorneys to assess the law as it relates to interim regulations of raw cannabis flower.
“But if that’s the case, I think there would definitely be space for clarification,” Port said. The 2024 session of the Legislature convenes Feb. 12 and Port has said she expects the need for regular updates and clarifications of the recreational marijuana law.
Hemp, a version of cannabis similar to marijuana, was legalized in the U.S. by the 2018 Farm Bill. As long as the intoxicating THC levels in the plants were below 0.3%, they were legal. Entrepreneurs began extracting THC from plants, enhancing the intoxicating effects and selling them as edibles or other products. In 2021, the state Legislature formally legalized sales of hemp-derived products. But that law had little regulation, giving the job to the small state agency that regulates prescription drugs and pharmacies.
House File 100 legalized recreational marijuana but also rolled in and expanded existing laws that legalized medical marijuana and hemp-derived products. It included interim regulations and assigned regulation of both medical marijuana and hemp-derived products to the existing Office of Medical Cannabis in the Department of Health. By 2025, all cannabis-related regulatory functions will be rolled into the Office of Cannabis Management.
