Opinion: Minnesota ruling on THC in liquids will hurt hemp industry

Opinion: Minnesota ruling on THC in liquids will hurt hemp industry

Hemp laws permitting trace amounts of THC will not protect those in possession of THC in liquid form of any percentage, a Minnesota appeals court ruled September 13.

It’s a precedent-setting case — one that could stunt the state’s burgeoning hemp industry and confuse people who have come to rely on legal CBD and other hemp extracts.

Details of the Case

In State v. Loveless, Minnesota's Court of Appeals concluded that hemp laws allowing up to 0.3 percent delta-9 THC apply only to unprocessed cannabis, or “leafy plant material.” In vape liquid, the court ruled, the presence of an unspecified amount of THC was enough to convict Jason Loveless of possession.

State v. Loveless is a complicated case that actually yielded a win for Jason James Loveless — as well as a loss that could have impacts far beyond his case.

In 2020, a Crow Wing County jury found Loveless guilty of two counts of possession of a controlled substance. One for cannabis as “leafy plant material,” the other for vaporizer cartridges the state claimed contain THC.

Loveless appealed. Due to changes in Minnesota law, he argued, the evidence was insufficient to show that the plant material and vape liquid contained delta-9 THC in concentrations above 0.3 percent.

Details of the Ruling

The court ruled in his favor on the unprocessed plant material, agreeing that the state didn’t meet its burden of proof to show that THC concentrations exceeded new legal limits of 0.3 percent.

But liquid found in vape containers was held to a different standard. In this form, the court ruled that no amount of THC would be considered legal.

“We conclude as a matter of law that the 0.3 percent threshold does not apply to a liquid mixture containing tetrahydrocannabinols,” reads the opinion authored by Judge Matthew E. Johnson, later saying, “Unlike the definition of marijuana, the inclusion of tetrahydrocannabinols in Minnesota's Schedule I does not make any exception for hemp or for a substance or mixture that has a concentration of delta-9 tetrahydrocannabinol that is 0.3 percent or less on a dry-weight basis.”

In other words, the state didn’t add the 0.3 percent language to its list of controlled substances. The federal government did, according to Judge Johnson.

A 2019 Law Allows Hemp Liquids

As Kevin Featherly pointed out on the news blog Session/Law, a 2019 law allows the sale of products containing “nonintoxicating cannabinoids” for consumption, as long as they meet requirements. Namely, that THC levels remain at or below the 0.3 percent dry-weight max.

“But that language’s presence in statute can’t undo Loveless’ conviction, the Court of Appeals found,” Featherly wrote. “Unlike the federal government, which specifically exempted all THC derived from hemp up to the 0.3% threshold, Minnesota’s law doesn’t."

The Ruling Misinterprets the Definition of Hemp

We at Nothing But Hemp believe the ruling fundamentally misinterprets the intent behind the definition of hemp.

Minnesota’s "Industrial Hemp Development Act” (Minn. Stat. § 18K) defines hemp thus:

“‘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 phrase “dry weight basis” is key. The court, in its interpretation, italicized it and concluded that the 0.3 percent maximum applies to “leafy plant material,” not liquids.

We disagree. The definition of “industrial hemp” explicitly includes hemp derivatives, many of which are consumed most efficiently in liquid form.

“Dry weight basis” is a standard by which to measure the raw material. If the plant material passes, it can be legally processed into extracts, cannabinoids, isomers, and so on. In theory, these derivatives should also be allowed to contain up to 0.3 percent delta-9 THC.

Ruling will hurt the hemp industry

A thriving market has been built on hemp-derived products, most of which aren’t sold as leafy plant material. CBD and other hemp extracts are often sold as oils, tinctures, gummies and vapes.

People are increasingly turning to liquid-based cannabinoids to help them sleep, relax, or reduce pain and anxiety — sometimes as an alternative to prescription drugs or alcohol. It’s well known that these extracts contain small amounts of THC, but don’t impair the mind.

The effects of the ruling create an atmosphere of uncertainty. Will more people fear possession charges? Would enforcement efforts in fact target people using liquid hemp products?

As Featherly noted on Session/Law: “The ruling potentially creates challenges for the state’s hemp-based cannabinoid, or CBD, industry, which manufactures waxes, oils and gummies, as well as leafy products derived from legal hemp—all of which contain trace amounts of THC.”

Time for An Amendment

If creating consistency within existing Minnesota legislation requires amending the definitions within Schedule I, we call on legislators to do that — before this ruling hurts law-abiding hemp businesses and the people who use hemp extracts lawfully.