Vireo Health sues the state of Minnesota for the right to sell edibles on the open market.
According to the Minnesota Star Tribune, Vireo Health, one of two licensed medical marijuana companies in Minnesota, is suing over the state's new hemp-derived THC edible law. The lawsuit claims the company's constitutional rights are being violated since its products remain illegal for those outside the state's medical marijuana program.
The main argument of the suit centers on the fact that the law, enacted July 1, 2022, allows hemp businesses to legally market the sale of edibles and drinks containing up to 5 milligrams of hemp-derived THC per serving and 50 milligrams per package to those in Minnesota 21 and older – including foods and beverages infused with THC, CBD, and other cannabinoids – while prohibiting Vireo and RISE Minnesota, the other medical marijuana company in Minnesota, from doing the same with their medical marijuana-based edibles.
THC is the main intoxicating compound in cannabis and has the same physiological effects, whether it comes from hemp or the marijuana plant. The main differentiator is that the amount of THC derived from the hemp plant is below 0.3%, while the THC derived from the marijuana plant is above that demarcation line of 0.3%. In essence, what is being regulated by the new law is the amount of THC exposure to the end user via the delivery system of a food or beverage product.
Thus, the law treats the two cannabis varieties differently for obvious reasons. Since Vireo derives its THC from the marijuana plant, it isn't allowed to sell its THC-derived products to the age-appropriate general public in Minnesota.
Vireo contends that the current law amounts to an unconstitutional double standard.
The lawsuit names multiple defendants, including representatives of the state Health Department, Office of Medical Cannabis and Attorney General Keith Ellison, and county prosecutors.
According to the suit, "Vireo would have to drastically change its business model to incorporate hemp and hemp-derived edibles. However, from a constitutional standpoint, Vireo should not have to change its business just to be treated equally with sellers of products that are identical to the products Vireo is already selling."
"Vireo would have to drastically change its business model to incorporate hemp and hemp-derived edibles. However, from a constitutional standpoint, Vireo should not have to change its business just to be treated equally with sellers of products that are identical to the products Vireo is already selling."
- Vireo Health's Lawsuit Against the State of Minnesota
The lawsuit also goes after the state's lack of regulation for hemp-derived edibles compared to the medical market. However, it ultimately seeks for Vireo to be allowed to openly sell its strictly vetted marijuana-derived products that otherwise meet the law's limits.
Some legal experts seem to agree with Vireo's position. For example, Mitchell Hamline School of Law professor David Larson thinks the suit has legal standing considering the investment medical marijuana companies have put into meeting strict state guidelines the hemp industry doesn't face.
"Is there a rational basis for treating these two groups differently? (At) first glance, I'm not seeing it, and I see the reason for the complaint — I think it must be very frustrating for the medical cannabis providers to see what's going on," he explains.
"Is there a rational basis for treating these two groups differently? (At) first glance, I'm not seeing it, and I see the reason for the complaint — I think it must be very frustrating for the medical cannabis providers to see what's going on."
- Dr. David Larson, Law Professor, Mitchell Hamline School of Law
Conversely, some view the lawsuit and its potential consequences as a case of the rich seeking to get richer. Steven Brown, the owner of the store, Nothing But Hemp, and president of the Minnesota Cannabis Association, argues that Vireo Health is free to start its own retail brand of hemp-derived edibles, separate from its medical marijuana business, whenever it wants.
"I think what happens is when these big behemoth companies come in, their whole goal is basically to take over the entire market share," Brown says. He also believes that the state's two medical marijuana makers will most likely lobby hard against the hemp industry during next year's legislative session.
"I think what happens is when these big behemoth companies come in, their whole goal is basically to take over the entire market share."
- Steven Brown, President of the Minnesota Cannabis Association
Likewise, Susan Burns, an attorney who works with clients in the cannabis industry, believes Vireo's legal arguments are flimsy, insincere, and motivated exclusively by money.
Concerning the new law, Burns says. "I think the real issue here is that it cuts into their market share. So if they want to open up a hemp-derived retail business, why don't they do that?"
"I think the real issue here is that it cuts into their market share. So if they want to open up a hemp-derived retail business, why don't they do that?"
- Susan Burns, Attorney for the Cannabis Industry
To still other advocates, the Vireo lawsuit highlights the more significant need to legalize all forms of cannabis across the entire state. According to a recent survey conducted by Minnesota House of Representatives officials last month, 61% of Minnesotans back legalizing cannabis for recreational use.
But despite a comprehensive reform bill offered up by House Majority Leader Ryan Winkler (D), which advanced through 12 committees before finally passing on the House floor last year, legalization stalled in the GOP-controlled Senate and was ultimately shot down. Likewise, an earlier bipartisan legalization proposal led by Jensen and Sen. Melisa López Franzen (D) in 2019 also failed to advance.
Ultimately, the issue of widespread legalization will most likely have to be determined by the voters. Regardless, even if new laws like the one Vireo's suit targets do not perfectly address the issue of access to THC-infused edibles, one thing is clear. The march toward universal access to cannabis and cannabis-based products is becoming more and more an inevitability for citizens of Minnesota and potentially the entire country.
