As the state begins to implement its adult-use cannabis market, top cannabis regulators are launching a new plan to combat the sale of raw cannabis flower that exceeds the federal definition of hemp.
It is an exciting and hectic time for Minnesotans who love hemp and its sibling plant, cannabis. Ever since the federal government legalized the cultivation and sale of the former through the 2018 Farm Bill, the Minnesota hemp industry has blossomed into one of the most successful throughout the country.
However, with the enactment of a new law this past Spring, which legalized adult-use cannabis sales, there is a concerted effort by state regulatory officials to crack down on the illegal intermixing of hemp and cannabis sales out of Minnesota’s hundreds of licensed hemp retail establishments.
For quite some time now, a small but significant number of hemp retailers have been suspected of blurring the lines of legality by selling raw cannabis flower that technically exceeds the technical definition of hemp as outlined by the Farm Bill.
While marijuana use is now legal in Minnesota due to the aforementioned recreational legalization bill passed last May, the sale of adult-use cannabis remains illegal outside of a handful of tribal reservation dispensaries, which means recently purchased raw cannabis flower from a Twin Cities hemp store that tested above the legal limit is not supposed to be happening.
Due to a gap in that adult-use law, state regulators had neither the authority nor an adequate number of inspectors to sufficiently sample and test flower sold out by hemp retailers to determine if they exceeded federal and state definitions for the plant.
Per the Farm Bill, any part of the cannabis sativa plant containing more than 0.3% delta-9 THC (the most well-known intoxicating cannabinoid) is considered cannabis and is illegal at the federal level.
According to an investigative report by the MinnPost, a recent purchase of raw cannabis flower from a licensed hemp retailer turned out to be illegal. The sample purchased by a verified but unnamed person tested at a potency level of 1.1% delta-9 THC, three times the legal limit. In addition, the sample, tested at a California-based cannabis testing lab, also revealed that the bud contained a total THC content of 29.99%
The investigation also revealed that the retail raw flower turned out to be more potent than another marijuana sample purchased on the illicit black market in Minnesota and tested by the same lab. That sample contained 1.38% delta-9 THC and a total THC content of 25.36%.
Kooka, based in Fridley, MN, manufactured the retail flower sample. When asked about the result, the company’s owner, Jeff Taylor, said that if state officials deem his product illegal, he will discontinue selling it.
“If they’d rather it be sold on the street where people are putting fentanyl in it, does that make sense? I’ve talked to a lot of police and they say they’d rather you sell it in stores than it being sold out of the street. But I’m here to work with the state. I told them the day they want us to stop selling what we’re selling, all they have to do is pick up the phone and say we don’t want you to sell it. That would be the last day it would be sold,” Taylor said.
"If they’d rather it be sold on the street where people are putting fentanyl in it, does that make sense? I’ve talked to a lot of police and they say they’d rather you sell it in stores than it being sold out of the street. But I’m here to work with the state. I told them the day they want us to stop selling what we’re selling, all they have to do is pick up the phone and say we don’t want you to sell it. That would be the last day it would be sold."
- Jeff Taylor, Owner of Kooka
In response to the concerns filed by the public and questions asked by the media, this past Thursday, the state’s Office of Cannabis Management (OCM) confirmed to the MinnPost its plan to begin regulating the sale of raw cannabis flower.
“That interagency agreement is in place. I have signed it. We are starting to contact retailers as we speak to talk about inspections,” said Office of Cannabis Management interim director Charlene Briner Thursday. In addition, regulators have also signed a contract with a testing lab to assess the legal status of raw flower sold from hemp retailers.
"That interagency agreement is in place. I have signed it. We are starting to contact retailers as we speak to talk about inspections."
- Charlene Briner, Interim Director of the MN Office of Cannabis Management
Likewise, Briner sent a memo to retailers Thursday informing them of the new rules and guidelines.
“The Office of Cannabis Management has received complaints of retailers selling cannabis flower under the label of hemp flower,” the memo stated. “Under an agreement between The Minnesota Department of Health (MDH) and OCM, inspectors from MDH will begin to examine any flower products being sold during their regular inspections to determine whether they are indeed hemp flower or cannabis flower.”
"The Office of Cannabis Management has received complaints of retailers selling cannabis flower under the label of hemp flower,” the memo stated. “Under an agreement between The Minnesota Department of Health (MDH) and OCM, inspectors from MDH will begin to examine any flower products being sold during their regular inspections to determine whether they are indeed hemp flower or cannabis flower."
- Memo from the OCM to Hemp Retailers
Other details outlined in the memo include:
- Under state law, OCM may assess fines in excess of $1 million for violations.
- OCM has the authority to embargo any product it has probable cause to believe “is being distributed in violation” of the law.
- Violations may affect the OCM’s future licensing decisions.
The new workaround detailed in the memo is the result of an agreement first considered in early February to address the issue of illegal raw flower sales and effectively regulate the state’s hemp industry in light of the new adult-use sales law.
The arrangement will allow the OCM to use the state’s medical cannabis office’s existing army of inspectors to enforce “the prohibitions against illegal sales of raw cannabis flower that carries potency levels exceeding what is allowed for hemp.” It also places the hemp industry under the regulatory purview of the OCM moving forward.
While this new regulatory approach is far from ideal and may cause disruptions to the day-to-day operations for some hemp retailers, overall, the new system is being viewed as the best available stop-gap option until the recreational market launches successfully sometime in early 2025.
