Minnesota Marijuana Regulators Ask Lawmakers To Fix Loophole That Allows High-THC Raw Cannabis To Be Sold As Legal Hemp

Because the raw flower being sold isn’t processed, the Office of Medical Cannabis believes it lacks authority to regulate it, hence the needed law change.

By Peter Callagan, MinnPost

Minnesota’s regulators will ask state lawmakers for a law to help them police the sale of raw cannabis flower, a product that was left without clear regulation in the 2023 recreational marijuana law.

Charlene Briner, the interim director of the Office of Cannabis Management, said this week she’ll ask for legislation to transfer oversight and enforcement of hemp-derived products from the Office of Medical Cannabis to her office this summer rather than wait until next spring. Briner said the acceleration would help fill a gap in the new recreational marijuana law that gave her office the authority—but not the staff—to inspect raw cannabis flower.

But the move would also bring hemp-product oversight to the Office of Cannabis Management right away and allow the medical cannabis office to concentrate on what its name implies—medical cannabis.

How raw cannabis flower is regulated under the recreational marijuana law passed last May was called into question late last year when medical cannabis regulators said they lacked legal authority to regulate it. That has allowed some registered hemp retailers to sell raw flower, often sold under the label THCa, that might be legal hemp but might also be illegal marijuana. While it is already legal to possess marijuana, and adults can grow a few plants for personal use, it won’t be legal to sell it outside of tribal reservations until the state issues licenses next year.

Without legal authority to inspect, the medical cannabis staff can’t test the potency in order to be sure. Police departments could take enforcement action, but most are reluctant to regulate what is now a state job with mostly civil rather than criminal sanctions.

So the Office of Medical Cannabis has the inspection teams already in the field working with hemp retailers but without the authority to test and sanction sales of raw flower that might be illegal. At the same time, the Office of Cannabis Management has clear legal authority over raw cannabis flower but does not yet have its inspection and enforcement operations in place.

During a webinar last Wednesday to describe the Office of Cannabis Management’s (OCM) progress toward retail sales, Briner called the regulatory gap “an interesting dynamic.”

“Accelerating the transition and bringing over the enforcement team from the Office of Medical Cannabis, bringing them over to OCM as early as July 1, 2024, helps us better integrate those operations [and] develop additional consistency in our enforcement approach,” Briner told the nearly 500 people watching the webinar.

This would be the second step Briner’s office has taken to respond to concerns from some hemp-derived retailers that there are retailers working on the edge of what is legal. That is, they are selling raw cannabis flower that can be smoked or vaped as a legal product when it could, in fact, be illegal.

She said last month, after a meeting with law enforcement associations and local government representatives, that her office will craft interagency agreements with the medical cannabis office and the Department of Agriculture to essentially deputize those agencies’ inspectors to enforce the OCM’s legal authority over raw flower.

After the Wednesday webinar, Briner said bringing medical cannabis inspectors over to OCM early isn’t being done solely to help close the enforcement gap.

“The early transition is something we’d identified as making sense from a capacity building and alignment perspective well before the issue around raw flower had really even been identified,” she said via email. She described that transition and the previously announced move toward interagency agreements as a both/and approach.

Regarding those agreements with the medical cannabis office and the Department of Agriculture that regulates hemp as a farm product, Briner said “we’re in the process of executing them as we speak. And we are pursuing the early transition of the hemp-derived team at [the Minnesota Department of Health] to help build OCM’s foundational capacity—not because of any ‘loophole’ but because they’re coming over anyway so bringing them on board earlier just helps us better align efforts.”

Bringing the inspectors under the umbrella of the Office of Cannabis Management this July would accelerate the current law’s schedule to co-locate all cannabis regulation under OCM in March 2025. That is the date that coincides with the expected rollout of non-tribal recreational marijuana sales in Minnesota and when recreational, medical and hemp derived products will all be under the OCM roof.

Why all the confusion? The new law approved last May assigned to the Office of Medical Cannabis the temporary job of regulating both medical marijuana and hemp-derived products that were legalized in 2022 without a robust regulatory system. Under federal and state law, cannabis plants are considered hemp if they contain .03 percent or less concentrations of the intoxicating compound THC. At those levels, the plant is not intoxicating even when burned. Hemp-derived products go through processing to enhance the THC content so as to produce an intoxicating effect.

But because the raw flower being sold isn’t processed, the Office of Medical Cannabis believes it lacks authority to regulate it, hence the needed law change to accelerate the Office of Cannabis Management’s regulation of the product.

This story was first published by MinnPost.

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