The 2019 Minnesota legislature amended the definition of hemp, a legal category of the cannabis plant. And the new law changes the legal status of Hemp-CBD products.
Before the amendment, as long as the source was a hemp plant, THC was legal in any amount, at any concentration level.
That’s why the early 2019 criminal charges for sale and possession against Lanesboro, Minnesota hemp farmer Luis Hummel should be dismissed, if they haven’t been already.
According to news media reports, a prosecutor charged Hummel with criminal sale and possession for hemp-CBD oil with over 0.3% THC. But under the law at that time, it was not a crime to have hemp-CBD oil over 0.3% THC.
That’s good news, at least for Mr. Hummel.
The bad news? The 2019 legislature amended the law, effective July 1,2019. Now, hemp-CBD oil no longer qualifies as legal “hemp” under Minnesota law, unless 0.3% THC or less.
Why? Read on.
The plant vs. the extracts
The 2019 legislature amended Minnesota Statutes 2018, section 18K.02, subdivision 3, to read:
Minnesota Statutes §18K.02, Subd. 3.
Subd. 3. “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.
The underlined language is new.
This changes the law for hemp-CBD. As you can see, the new law now imposes a THC limit of not more than 0.3 percent on a dry weight basis for “the plant’s seeds, and all the plant’s derivatives, extracts,” etc. But the old law did not.
That’s why under the pre-July 1, 2019 version of the law, any amount of THC, any concentration level up to 100% THC was legal as long as it was sourced from a cannabis plant with “not more than 0.3 percent on a dry weight basis.” As long as it came from a hemp plant, THC was legal. See our related article: CBD, Hemp & Law in Minnesota.
Problems in the law remain
Policy-makers at the Minnesota state and federal levels seem to agree that hemp-CBD products should be broadly legal and available to consumers. And the civil regulatory framework appears to still be under development. But the policy intent is clear. And we at least don’t want hemp-CBD products to be a crime.
Minnesota’s new hemp definition fails to account for the hemp-CBD product manufacturing process. And the new law seems to create an unintended trap for Minnesota Ag community.
Here is a simplified version of the hemp-CBD product manufacturing process:
- Farmers grow cannabis plants with “not more than 0.3 percent on a dry weight basis” (“hemp”); then,
- Process the hemp to extract the flower oil, which has a usable concentration of CBD and other cannabinoids: then,
- Dilute the hemp oil concentrate to ensure the consumer product is in compliance with a 0.3% THC legal threshold.
The problem? Though steps one and three above are within the 0.3% THC limit, step two is not. It may be impossible to make hemp-CBD oil without the intermediate step at 10 times or more the 0.3% THC consumer-product threshold.
The legislature should amend Minnesota’s law again, in 2020, to prevent miscarriages of justice for Minnesota’s law-abiding hemp farmers and agricultural community.
About the author: Thomas C. Gallagher is a Minneapolis criminal attorney regularly representing clients accused of marijuana “crimes.” He is also a Board Member of the non-profit Minnesota NORML. Gallagher regularly teaches on criminal law and cannabis law topics.