Did Minnesota accidentally legalize weed?

Minnesota just sorta, kinda, almost legalized weed.

A law took effect earlier this month allowing anyone at least 21 years old to purchase edibles or beverages with up to 5 milligrams of hemp-derived THC per serving. Those relatively low potency products with up to 50 milligrams per package still pack enough of a psychoactive punch to get most users plenty high.

But some key lawmakers who approved the significant change in drug policy were seemingly confused about what they’d done.

Marijuana legalization has been a divisive issue in the Minnesota Legislature for years. The Democratic-controlled House passed legislation last year that would allow anyone at least 21 years old to legally purchase and possess the drug, but the GOP-controlled Senate has remained staunchly opposed to recreational legalization. Yet a legalization provision was adopted during a marathon conference committee meeting in May without debate or objection.

“That doesn’t legalize marijuana?” Sen. Jim Abeler, the Republican chair of the Senate Human Services Reform Finance and Policy Committee, asked after it was adopted by a voice vote. “We didn’t just do that?”

Democratic Rep. Tina Liebling took the opportunity to needle her GOP counterpart: “Are you kidding? Of course you have.”

Liebling quickly made it clear that the provision that sparked confusion wouldn’t actually legalize weed in the state. “We’ll do that next,” she joked.

Abeler referred questions to a Senate GOP spokesperson who did not respond to a request for comment.

However, he told the Minneapolis-based Star Tribune that he thought the provision would only legalize Delta-8 THC products, which were already widely sold in Minnesota, not Delta-9 THC products that remain illegal on the federal level. Delta-8 products occupy a hazy legal status under federal law because they’re derived from hemp with less than 0.3 percent THC, which was legalized by Congress under the 2018 farm bill.

"I thought we were doing a technical fix, and it winded up having a broader impact than I expected," Abeler told the newspaper.

Creating guardrails

It all underscores the confusion around how the state ultimately loosened its restrictions on cannabis.

Democrats say they were fully aware of what the hemp legislation would do. They point out that the bill received three committee hearings in the Democratic-controlled House. In addition, they argue that it’s a much-needed public health improvement, given that there were already intoxicating Delta-8 products being sold across the state without any rules or regulatory oversight. Such products have proliferated across the country over the last two years, particularly flourishing in states that still have tough restrictions on marijuana use. 

“The substances were being sold all over the place anyway,” Liebling said in an interview. “My main interest … was to put some guardrails around it.”

Legalization advocates who worked on the bill back the assertion that it received significant vetting before it was added to a massive omnibus health care bill at the end of the legislative session.

“There was not enough clarity in our laws to make sure that consumers purchasing these products were safe,” said Maren Schroeder, policy director for Sensible Change Minnesota, which supports marijuana legalization. “We talked a lot about what is intoxicating and what is non-intoxicating, and really needing to quantify that in some way, shape or form.”

But Senate Republicans are far less willing to discuss the bill and whether they realized it would permit intoxicating cannabis products.

GOP Sens. Michelle Benson, who chairs the Senate Human Services Licensing Policy Committee, and Mark Koran, a key player on cannabis issues, also referred questions to the caucus spokesperson.

House Majority Leader Ryan Winkler, a Democrat who has championed marijuana legalization, said Abeler and other GOP lawmakers should have been fully aware of the ramifications of the hemp provision.

“Either he was not paying a lot of attention or asking very good questions, or he knew and just doesn't want to have his fingerprints on it,” Winkler said in an interview. “I'm not sure which is the case.”

Kevin Sabet, CEO of the anti-legalization group Smart Approaches to Marijuana, called it an “embarrassing blunder” for Minnesota.

“I’m not sure if it was on purpose, but if so then it is very sneaky and likely unconstitutional,” he said in an email. “We will be working to amend this. We’re already hearing reports of parents worried about kids accidentally ingesting it.”

'Lines out the door'

Consumers appear to be enthusiastic about the new market for intoxicating edibles and beverages, and undoing the change would likely prove highly unpopular given the strong support for marijuana legalization both in Minnesota and nationwide.

Shawn Weber, managing director of Crested River Cannabis Company in rural southwestern Minnesota, said his business hasn't seen a big uptick in retail sales since the law took effect, pointing out that they were already selling more potent Delta-8 products than are permitted under the new law. However, wholesale business has picked up considerably.

"Other retail locations have literally sold out. They've had lines out the door," Weber said. "In the bigger towns there was a bigger consumer rush to the stores. All of our customers in our local area knew that these products already existed."

Tom Whisenand, CEO of Minneapolis-based Indeed Brewing Company, points out that his company previously produced a non-intoxicating seltzer called Lull with 10 milligrams of CBD. However, it halted production last year after being told by the Minnesota Department of Agriculture that the product was illegal.

“We knew we were kind of in a gray area then with that beverage, because CBD was not explicitly legal in Minnesota,” Whisenand said. “But there were tons of products being sold.”

The company now hopes to take advantage of the new law and have a reformulated cannabis beverage on the market by Aug. 1, this time with 2 milligrams each of THC and CBD. Whisenand said Lull was very popular, and he expects there to be significant demand for the new product, which is called Two Good.

“We certainly have enough capacity to hit expected initial demand,” he said. “It depends on how popular it is.”