And support is bipartisan. Though more Democrats support marijuana legalization than Republicans, “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time, and this year’s figure, 53%, suggests continued Republican support.”
Students of history draw lessons from the alcohol Prohibition life cycle. Why did it take so long to end it, even after a majority of Americans opposed it?
The five percent tipping point
Marijuana legalization at the Capitol. Minnesota NORML.
The tipping point was when about five percent of the voters made legalization a wedge issue. In other words they would disregard political party, other issues, and vote for a political candidate solely on the issue of re-legalization.
The alcohol Prohibition repeal soon followed.
In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota. Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.
How many elections are won or lost by less than five percent of the vote in Minnesota? Opposition to the majority will now has a severe price: losing.
The time has come for marijuana legalization. But what should it look like in Minnesota?
What should marijuana legalization look like in Minnesota?
The issue is Liberty, not marijuana. Ending marijuana Prohibition is consistent with conservative political values. Less government means more freedom. Prohibition is a government bloat program, that destroys lives, destroys our freedom.
We the People have at least equal rights to marijuana as we do to beer and wine. The fact that marijuana is safer than beer and wine, undercuts the Prohibitionist lie that “marijuana is a dangerous drug.” Death by overdose happens with alcohol, but cannot happen with marijuana. Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.
The three legal models for marijuana
We’ve seen three models for our legal rights to marijuana, in chronological order:
The Tomato Model
The Prohibition Model
The Beer and Wine Model
The Tomato Model
The Tomato Model of marijuana legalization
Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes. The law lightly regulates tomatoes. Tomatoes are not a crime to grow, possess, or sell.
The Tomato model means laws the repeal of laws criminalizing it. People are free to do with marijuana what they can do with tomatoes. We call it decriminalization.
This was the state of the marijuana laws before the marijuana Prohibition era began. Advocates of the tomato model say we should return to this. Of the three legal models, the tomato model is the most conservative. It protects the People’s Liberty most.
The Prohibition Model
The writing is on the wall: Vote Against Prohibition
Marijuana Prohibition never would have happened but for the alcohol Prohibition. As the alcohol Prohibition was winding down in the 1930s, state by state, the government Prohibition bureaucracy ramped up its anti-marijuana propaganda; much of it with appeals to racism.
They succeeded. They tricked the public into funding a massive anti-marijuana government bureaucracy.
It was a solution in search of a problem. At the time, marijuana usage rate was infinitesimal. Now almost every American has used marijuana at least once, thanks to Prohibition.
Though ten states have legalized marijuana for adult use, Minnesotans still live under the shadow of marijuana Prohibition. The government still pays police officers to break down doors, toss people’s cars, searching for marijuana. Then we pay prosecuting attorneys to charge people with marijuana with crimes, label us criminals, strip our civil rights and lock us up.
And enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups. Marijuana legalization ends these social evils.
The Beer and Wine model
Wine may not be for everyone, but a crime?
Under “the beer and wine model,” the people of Minnesota have equal rights to marijuana just the same as to beer and wine.
The metaphor works because people are familiar with beer and wine. The law treats marijuana the same as beer and wine in every way. It also works because marijuana is safer than beer or wine. This undercuts opponents’ “public safety” argument.
Wherever the law now says “beer” or “wine,” we can add the word marijuana. What could be more simple?
Step one – decriminalization
Prohibition Still Doesn’t Work. NORML.
Of course, we need to delete all criminal laws referencing “marijuana” and “THC.” This includes deleting both from the Schedules in Minnesota’s version of the Controlled Substances Act, now in Minnesota Statutes Chapter 152. We call this “de-scheduling.”
In addition, the criminal drug laws will be amended to delete all references to THC and marijuana. Most of these are also in Chapter 152.
That is the decriminalization component. For supporters of The Tomato Model, that is all we should do.
Step two – regulation
Under the beer and wine model, we not only completely decriminalize, we also enact a set of laws regulating marijuana production and sale. Here the existing beer and wine laws guide us.
We have equal rights to marijuana as to beer and wine. So the marijuana laws mirror those regulating beer and wine.
Conservatives and Liberty advocates may prefer The Tomato Model for marijuana laws, as we had before Prohibition. But here history has another lesson for us.
The legal framework for alcohol was The Tomato Model before the alcohol Prohibition. But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages. We’ll skip the reasons for that.
Suffice it to say, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model. The ten states that have legalized so far have substantially followed The Beer and Wine Model. Marijuana legalization in the Untied States so far means decriminalized and regulated like beer and wine.
What’s the Big Idea?
The Beer and Wine Model is the big idea. Liberty. Equal rights. Civil rights. Racial justice. These core American values support the beer and wine model of legalization, far better the evils of Prohibition.
What should marijuana legalization look like in Minnesota? The People should have at least equal rights to marijuana as to beer and wine. With that core principle, the rest takes care of itself.
Details Matter Too
We’ll take a deeper dive into the details of proposed legislation in the future. But now let’s take a look a few of the important details of re-legalization in Minnesota.
Yet in the 2010s, the Minnesota legislature crafted a Medical Marijuana law which favored “the resinous form” (concentrates) and disfavored plant-form marijuana. More recently they thought that the resinous form was safer than plant-form. The legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.
The public policy in these two sets of laws conflict.
A rose is a rose is a rose
The time has come to end the legal distinction between plant-form and the resinous form. We should treat all forms of marijuana as marijuana. It’s the same plant, the same substance. The distinction between forms creates needless confusion. If it made any sense, the legislature would not have contradicted itself.
Repair the Minnesota Medical Marijuana Program
The once and future medical cannabis
The lack of plant-form and home grow in Minnesota’s medical marijuana program has undermined it. Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people. And insurance does not cover it.
The “concentrates only” approach of Minnesota’s medical marijuana program adds unnecessary cost. Plant-form is less costly to produce.
The lack of legal home grow for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people. They can grow their own, cheap.
Suppliers and distribution
The law of supply and demand is stronger than criminal law
The “bad model” at this point is Colorado, the first state to legalize. Why? Because it has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion. Now that ten states have legalized for adult use, this is an unneeded expense.
If retail cost is too high, the underground economy will continue. We need to destroy the underground economy using the laws of economics, not failed criminal laws.
In some other states, over-taxation is a problem. If retail cost is too high, the underground economy will continue.
Equal rights, and justice: The “beer and wine model” comes to the rescue again. We should not tax marijuana more than the beer and wine. The “sin tax” on beer and wine is already sky-high.
What are transitional issues? These are issues that are big problems as we transition from a Prohibition Model, to a Beer and Wine Model of marijuana regulation. But we expect that ten years after legalization many of these issues will subside.
There are many transitional issues. Let’s mention a few.
Automatic record voiding of convictions and expungement
Minnesota’s legalization law should include automatic vacating of convictions and public records expungement.
Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court due to cost barriers.
The law should require the government to automatically vacate every criminal conviction related to marijuana or THC, and expunge those public records. We should remove the burden from the victims of Prohibition and put it on the government.
The law could be easier to follow, but the answers are here. CBD sourced from hemp is legal under Minnesota law. And a federal law prohibits spending on federal prosecution of people with state-legal hemp CBD. Here is the breakdown, with the related Minnesota and Federal laws.
Cannabidiol, CBD, is trending strongly. Why?
The main reasons are:
CBD has desirable health and wellness benefits.
CBD has no psychoactive effect, unlike psychoactive drugs such as alcohol, etc.
It is not now, nor has it ever been, illegal. And, it’s unregulated.
Only the third reason listed — the laws — could change. The biology of the plant and of humans will not change.
Green Light for Hemp
Despite the fact that CBD itself is not illegal, its federal legal status is still more complicated in 2018, than that statement seems to imply. We’ll dig into it here.
First though, what is Cannabidiol, or CBD? The second-most researched chemical in cannabis is Cannabidiol. CBD relaxes muscles, has other therapeutic effects, and is non-psychoactive.
Commercially extracted from cannabis plant resin, CBD is then concentrated into an oil high in CBD, low in THC.
What is THC?
Tetrahydrocannabinol (THC) is one of the other 113 cannabinoids found in cannabis plants. THC is the principal psychoactive constituent of cannabis, giving adult-use users the desired marijuana “high.” In marijuana, CBD and THC balance each other. CBD counters and mitigates (reduces) the psychological effects of THC.
Cannabis with high CBD is specially bred, grown or both with the goal of producing a high CBD-yielding plant. Medical marijuana can contain more than twenty percent CBD, while most adult-use marijuana has one percent CBD or less.
Science vs. Law – Two Worlds, Three Words
“Cannabis” has generally been a botanical, scientific name for the plant. The word “marijuana” came into common usage mainly because it was used in laws. The definition of marijuana was purely legal, defined by statute – not defined by science. The word “hemp” was in usage apart from its legal definition, but it now has a legal definition embedded in statutes.
As a result, cannabis is primarily a scientific term for the plant. “Marijuana” and “hemp,” on the other hand, are primarily legal terms, defined by statute as two separate categories of cannabis.
Currently under the law in Minnesota, “hemp” is not “marijuana,” and “marijuana” is not hemp.
The cannabis plant has many varieties – high resin varieties as well as low resin varieties.
The resin contains most of the THC and CBD and other, entourage cannabinoids.
The older legal definition of “marijuana” focused on the resin as being problematic. The 1970 Controlled Substance Act definition of “marijuana” demonstrates this. The Minnesota version’s definition focuses on resin as well. Minnesota Statutes §152.01, subd. 9 (2018):
“Marijuana.”Marijuana” means all parts of the plant of any species of the genus Cannabis, … whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
(Despite this statutory definition language: “all parts of the plant of any species of the genus Cannabis,” another statute defining hemp provides that the hemp form of cannabis is not “marijuana.” Discussion of the Minnesota hemp statute follows.)
The THC level dividing line — hemp is not marijuana
More recent developments in the law draw a THC-level line between “marijuana” and “hemp.” Hemp has “no more than 0.3 percent THC by dry weight” under federal and now Minnesota law. (Other states, however, have higher THC thresholds for hemp than Minnesota does –and for good reason.)
This historical, legal development over time has created unintended consequences and legal ambiguities. Such as?
Here is the big problem. People want to be able use CBD products for health and wellness support. No one seems to object to CBD itself, as CBD, after all, it has no intoxicating effects; has no euphoric effect. But, the best CBD comes from “marijuana” not hemp, as legally defined under the federal and Minnesota legal definitions.
CBD from legal hemp is currently legal. But CBD from illegal marijuana is currently illegal.
It’s the source that makes it legal or not, in 2018.
Hemp as a Source of CBD
Though CBD can be extracted from a hemp source, hemp has little resin (compared to marijuana); and so has little CBD. CBD, like its sister THC, concentrates in the plants’ resin.
Absolute vs. Relative Levels of cannabinoids
Hemp is a less efficient source of cannabinoids, including CBD (two-to-four percent). But the low-level of THC in hemp does not prevent the ratio ofCBD-to-THC from being high, ten-to-one, or more. In this relative sense, hemp varieties can be claimed to be “CBD rich.”
Cannabis plant varieties with higher absolute levels of CBD exist. If a plant contains more than twelve percent CBD in the flower buds, it will also normally contain more than three percent THC. (Over the three percent level of THC would make the cannabis “marijuana,” not “hemp.”)
The extract from that sort of plant can be purified to produce crystalline CBD. (Note the difference possible between the THC level of the plant vs that of the end product.) Again, the current laws make CBD legal if from a legal source (i.e., hemp), but illegal if from an illegal source (i.e., illegal “marijuana”).
Manipulation of the plant to comply with the law
Plants can be genetically bred and crossbred, as well as specially cultivated to increase the CBD level while decreasing the THC level to less than the legal threshold for hemp.
Hemp is a low-yield source of CBD. Large amounts of hemp must be used to extract a relatively tiny amount of CBD, as compared to “marijuana.” A side effect of that is that hemp-sourced CBD is at risk of containing high levels of environmental contaminants, because hemp is a bio-accumulator. The quality of the soil should be tested, since large amounts of hemp are cultivated to produce small amounts of CBD,
Marijuana-sourced CBD is not only more efficient, but results in a higher quality and safer end product.
Clear Legal Landmarks and Ambiguities
The plant vs. the end product
The legal status of CBD products, in Minnesota in 2018, depends upon the THC level in the source plant, not the end product. In other words, a CBD-product with “no more than 0.3 percent THC by dry weight” would still be illegal if it was sourced from a “marijuana” plant (a cannabis plant with 0.3 percent THC by dry weight). This, even if the product has zero THC. What sense does that make?
The current situation with CBD, hemp and the law in Minnesota:
It’s not a crime if it’s not listed in the federal or state version of the Controlled Substances Act, CSA schedules.
Both “marijuana” and THC are listed; in both Minnesota and federal CSAs.
CBD is not listed in either the Minnesota or the federal CSA, and so is not illegal as CDB.
The only commercially feasible sources for CBD are “marijuana,” and to a lesser extent “hemp” – both legally-defined categories of the cannabis plant.
CBD sourced from “marijuana” plants, is a crime to possess.
Hemp sourced CBD (or theoretically another non-“marijuana” source) is not a crime to possess. It is unregulated.
Products marketed as CBD may be contaminated due in part to the lack of regulation and the legal push away from “marijuana” as a source. Compared to marijuana, hemp is an inferior source of CBD.
Simple solution: Completely legalize marijuana. Then legally source CBD from “marijuana” – a better source for safe, quality CBD.
Baby step:Increase the THC threshold for hemp from .03 percent to 1.0 percent or more. (For example, West Virginia defines hemp as cannabis with a THC concentration of less than 1 percent.) This would improve the quality of hemp sourced CBD.
Baby step: Law authorizing and regulating the maximum THC-levels of CBD products, regardless of plant source.
The Legal Grey Areas
As is often the case with the law, the law relevant to the legal status of CBD is the result of history. Metaphorically, lawyers and judges are like archaeologists – digging down through the layers to discover how the past influenced later developments, to arrive at the current state of the law.
The development of laws relating to the cannabis plant strongly influence the legal status of CBD is a because it is a component of the cannabis plant.Those laws have been buffeted by controversy since about the end of the U.S. Alcohol Prohibition era, when the marijuana Prohibition era began.
Since then, the political back-and-forth on marijuana laws over time has resulted in a ragged edge in the laws – legal ambiguities. It’s a bit messy, but lawyers are trained to sort out such messes. So here we go.
First, a succinct topical description of the conflicting policies and laws, will be followed by explanation. The following legal factors interact and often conflict with each other:
Restrictive Federal Hemp Research law (“Farm Bills”), vs.
federal statutory recognition of State authority, vs
preemption of State laws by federal laws, vs
federal comity or non-enforcement policies (“Appropriations Acts” – no money to enforce; plus local U.S. Attorney discretion).
In Minnesota, the ambiguity seems to come from the federal laws, not our state laws, so we’ll look at the federal laws first.
Federal Legal Timeline
1970, Federalism, Down for the Count
The 1970 Controlled Substances Act introduced the idea of five “schedules” ostensibly based upon social risk vs. benefit. Schedule 1 drugs are those claimed to have a high potential for abuse; and no currently accepted medical treatment use.
Despite expert disagreement with claims that marijuana had “a high potential for abuse and no currently accepted medical treatment use,” “Marijuana” was included in Schedule 1 in 1972,
In 2018, thirty-one states now have legal medical marijuana programs, and fifteen states (e.g., Wisconsin) allow marijuana-sourced “low THC, high cannabidiol (CBD)” products for health use. The majority of the U.S. population now lives in a state where medical marijuana is legal. How do these facts square with the claim that it has “no currently accepted medical treatment use?”
Note that Minnesota adopted its own state version of the federal CSA, with five schedules of listed drugs. It is not identical to the federal version.
Schedule 1: marijuana and THC are listed, CBD is not listed
The federal CSA schedule defines “marihuana,” as the cannabis plant except for the mature stalks and non-germinating seeds. THC is separately scheduled under the federal CSA — the only natural cannabinoid specifically scheduled.
CBD is not a scheduled drug under the CSA. Plant components chlorophyll and CBD share the same legal status. When sourced from marihuana, both chlorophyll and CBD are “schedule 1 drugs.” Nevertheless, CBD itself is not scheduled. You won’t find it listed on the CSA. Go ahead and check. It’s not there.
Despite this welcome clarity in the law, some remain confused about this easily verifiable law. For example, the Wikipedia entry for “Cannabidiol” (as of this writing), incorrectly claimed that Schedule 1 of the federal Controlled Substances Act lists Cannabidiol (CBD). A five-minute online fact-check of the statute proves that CBD is notin Schedule 1 of the federal Controlled Substances Act.
2008, the Dawn of the Federal Non-enforcement policy
By 2008, state after state had passed laws decriminalizing marijuana, and legalizing medical marijuana; and the trend was clearly accelerating.
Prosecutorial discretion era
2009: “the Ogden memo” in 2009, instructed all U.S. Attorneys to make federal prosecution of marijuana possession a low priority, especially for people complying with a state’s medical marijuana law.
By 2012 in Colorado’s November 2012 general election, marijuana legalization got more votes than the winning Presidential candidate, Barack Obama. Clearly, legalization transcended partisan politics and politicians took note.
2013: “The Cole memo” in 2013, suggested that federal prosecutors rely on the states to enforce state law except “marijuana-related conduct” within one of eight limited federal “enforcement priorities.”
The memos identified Controlled Substance Act enforcement priorities. They encouraged federal prosecutors to avoid enforcing federal drug laws against “seriously ill individuals” using marijuana consistent with state laws.
These administrative directives encourage federal comity to the states, and non-enforcement of federal marijuana laws against people legally authorized under state law.
2014, The Rebirth of Federal Legal Hemp – Baby Steps
Federalism returns – the statutory era
Hemp growing legal
2014 “Farm Bill,” the Agricultural Act of 2014, 7 U.S.C. § 5940: While legal experts insist CBD is already legal under the 2014 Farm Bill, some government agencies claimed the contrary.
Much of this confusion is due to a lack of attention to the importance of the source of the CBD under current law. CBD is not the subject of these laws; hemp is.
Section 7606 of the 2014 Farm Bill provided for the legal cultivation by states of “industrial hemp” without a permit from the federal DEA (“Hemp Pilot Programs”). The 2014 Farm Bill protected cultivators registered under a state’s hemp research pilot program, who cultivate cannabis containing no more than 0.3% of THC, and who meet the requirements imposed by their state department of agriculture.
Lawyers for the hemp industry argued that 2014 Farm Bill’s language is broad enough to include market research, including sales of hemp-based CBD products. The federal Drug Enforcement Administration (DEA) had emphasized their view that CBD remains illegal under the Controlled Substances Act, leading to lawsuits by the hemp industry.
Court interprets the Farm Bill
Regardless of the DEA’s prior position, courts have recently weighed in, and clarified the law:
“The Agricultural Act provides that “[n]otwithstanding the Controlled Substances Act . . . or any other Federal law, an institution of higher education . . . or a State department of agriculture may grow or cultivate industrial hemp,” provided it is done “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research” and those activities are licit under the relevant State’s laws. 7 U.S.C. § 5940(a). The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it.” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, Court of Appeals, 9th Circuit 2018
The court emphasized that the 2014 US Farm Bill federally legalizing hemp where legal under state law, overrides any conflicting language in the 1970 Controlled Substances Act (such as the definition of “marijuana”). Section 7606 of the 2014 US Farm Bill (the “Farm Bill”) allows states to grow “Industrial Hemp” defined as having less than 0.3% THC on a dry weight basis in states that have implemented agricultural pilot hemp programs. Minnesota has done so.
The Court found that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.
2015: Federal Nonenforcement – the Sequel, this time with Congress
2015: Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015), limits the Justice Department from spending federal dollars to intervene in, or prosecute state-sanctioned activities involving marijuana or industrial hemp.
The court removed any doubt about the plain language of the federal statute, mandating federal non-intervention in state legal marijuana and hemp rights.
“The Consolidated Appropriations Act forbids the use of federal funds from being used “in contravention of . . . the Agricultural Act” or “to prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014.” Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015).” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.
In 2014 and 2015, Congress passed the landmark Rohrabacher-Farr amendment to the Commerce, Justice, Science and Related Agencies (CJS) Appropriations Act, which prevents the federal Department of Justice from using any funds to interfere in state medical cannabis programs and bars ongoing federal cases. Subsequently, state medical marijuana programs increased from 20 states to 31 states.
2017: DEA Rule by Fiat Fizzles
The court lays it out
New DEA Drug Code (7350) for Marijuana Extract – “went into effect on January 13, 2017:”
“Petitioners Hemp Industries Association, … (collectively “Petitioners”) petition this Court to review a final Drug Enforcement Agency (“DEA”) rule that establishes a new drug code for marijuana extract. We … deny the petition. … The rule went into effect on January 13, 2017, and Petitioners timely filed the instant petition for review that same day. A party may petition a Court of Appeal for review of a final DEA decision, 21 U.S.C. § 877, but if the party fails “to make an argument before the administrative agency in comments on a proposed rule,” they are barred “from raising that argument on judicial review.”… The Final Rule put this question to rest when it rephrased the definition to apply to an “extract containing one or more cannabinoids [.]” 81 Fed. Reg. 90195 (Dec. 14, 2016).” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.
Then the DEA backtracks
The DEA’s Clarification of the New Drug Code (7350) for Marijuana Extract, concedes that the legal status of CBD is dependent upon the legal status of its source, though it fails to acknowledge the clear language of the law as quoted with approval by the court that the Farm Bill legalizing hemp overrides the federal Controlled Substances Act definition of “marihuana:”
“Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations.
As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.
According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk. …
However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids.”
Hemp CBD is effectively legal in Minnesota
After all of the above, the conclusion must be that CBD is effectively legal federally if sourced from federally-legal hemp. Hemp is federal-legal if it complies with the federal “Farm Bill” which requires it be state-legal. But CBD from “marijuana” sources remains, in 2018, illegal-federally.
Well, technically illegal. “The Appropriations Act” language prohibits spending funds on federal prosecution where people are in compliance with State laws on marijuana and hemp.
So, though some state-legal hemp might arguably not be federally-legal (due to violating the Farm Bill’s restrictions), the Appropriations Act prohibits federal criminal enforcement.
In other words, CBD is legal if sourced from “Farm Bill”-complaint-hemp.
But even if not “federally legal,” the “Appropriations Act” language prohibits federal prosecution, provided it’s:
state legal-hemp sourced (even if not “Farm Bill” compliant); or
it is made from “marijuana” and state legal as part of the state’s medical marijuana program.
Non-cannabis sourced CBD products?
Beware claims that CBD is from a non-cannabis source and therefore legal. Although theoretically possible, claims of commercially available, non-cannabis sourced CBD lack credibility, proof or factual support. It’s just not commercially feasible, at least to date. Beware claims made to the contrary.
2018: Good Things Ahead?
These two key federal laws, often referred to as the “Farm Bill” and the “Appropriations Act,” have been renewed in subsequent laws with some variation in the intervening years since their first enactment. A potential “Farm Bill” successor, the Hemp Farming Act of 2018 (the “2018 Farm Bill”) appears unlikely to pass in 2018. It would have further improved the U.S. trade and economy from Hemp Agriculture, and included more protections for Hemp-sourced CBD. Given its bipartisan support, it may yet be adopted in 2019.
Minnesota State Laws
Under Minnesota law, anything sourced from “marijuana,” is marijuana and as a result criminal to sell or possess in any amount.
Possession or gifting 42.5 grams or less plant-form marijuana, “a small amount,” has been decriminalized.
Marijuana-CBD legally from the Minnesota Medical Marijuana program by a state authorized patient; or medically prescribed, pharmaceutical Epidiolex.
Hemp-sourced-CBD. If from non-“marijuana” sources, it’s legal under Minnesota law.
There is no law that specifically addresses the legal status of CBD itself, in Minnesota. Now, its legal status depends entirely upon its source. If “marijuana” sourced, CBD is “marijuana” even if it contains zero THC. Of course, that could change.
Of course, Minnesota could pass a law clarifying that CBD itself is legal regardless of source, perhaps also regulating production, content, and sale.
Non-“marijuana” sources of CBD: Industrial hemp
Minnesota “Industrial Hemp Development Act.” Minnesota Statutes Chapter 18K (2018):
“18K.02 DEFINITIONS. Subd. 3. “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, 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.
Subd. 4. “Marijuana” has the meaning given in section 152.01, subdivision 9.
18K.03 AGRICULTURAL CROP; POSSESSION AUTHORIZED.
Industrial hemp is an agricultural crop in this state. A person may possess, transport, process, sell, or buy industrial hemp that is grown pursuant to this chapter.
Minnesota law is clear; federal laws are a mess
Minnesota law on hemp is cleaner than federal law in that it avoids the convoluted federal “notwithstanding …” layered definitions and non-enforcement laws.
Minnesota law simply draws a clean and clear line, saying above the 0.3 percent on a dry weight basis THC threshold – it’s “marijuana.” Below that threshold it’s “industrial hemp” and that “industrial hemp is not marijuana.”
Though, as discussed above, Minnesota should consider increasing the THC threshold to one percent, as West Virginia has done. This compromise would allow for safer, quality hemp-derived CBD, and help solve some of the problems we are seeing today with unregulated CBD products.
Recommendations. What solutions make the most sense?
Minnesota: Legalize marijuana for responsible adult use, including small batch home-production commensurate with home-production of beer and wine.
Federal: Repeal all laws criminalizing marijuana, resume federalism by leaving it to the States. Carve out federal recognition of legal hemp and hemp products, and their free trade in interstate commerce.
Baby step solutions – detailed above.
Thomas C. Gallagher, Minneapolis Criminal Lawyer
DISCLAIMER: Nothing in this article, comments, or this blog is legal advice.
The other day I was talking to a prosecutor. I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.” He responded mischievously with “You know how he could avoid all that don’t you? Don’t get caught.” He was joking, but like many jokes there was some truth in it.
“Officer, am I being detained? I’m late, for a very important date.”
As of this writing, ten states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older. And, most of the U.S. population now lives in a state with legal medical marijuana. We should all know by now that marijuana is safer than alcohol. There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.
What can you do to reduce the chance of getting caught? Here are nine tips:
1. Situational awareness
Guess where the vast majority of police contacts with people happen? Correct – in or near a motor vehicle. As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.
Complacency can set in. If it hasn’t happened yet, it never will. Right?
The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.
There will be a traffic stop. When it does happen; marijuana should not be in the car.
Minnesota: If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned. This is prone to abuse by police officers since it’s impossible to verify.
Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.
And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.
Have you or anyone you know experienced “nose blindness?” A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person. The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person. But non-users can smell it.
It’s best to assume that if you’ve been smoking it that day, there may be odor. If it’s been smoked in the car, the odor is probably lingering in the car for a day or more. (Tip: don’t ever smoke in the car.)
“No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.
Make an excuse if you like: “I’m late, for a very important date.” But no excuse is necessary. You should not offer any justification for refusing a search.
Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.
The rape metaphor: One of those exceptions is a consent search. Police often ask people “do you mind if I search”? The correct answer is, “I do not want to be searched.”
If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search. Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.
4. You can do both
Don’t lie and don’t admit. How?
Remain silent. Or if words do come out of your mouth make sure that they are not lies, and do not relate to illegality.
More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is. Wrong answer!
Instead, remain silent – meaning words are not produced by you. Tightening your lips may help your resolve. If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not. And again, do not consent to a search.
Police will try to make you think: “Busted. The jig is up. May as well come clean now. Give up. You cannot win at this point.” But don’t believe that for a minute! You need to be prepared. Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
5. Unlawfully prolonged detention
“Am I free to leave?” Here is the scenario. You’re stopped by police for a headlight out, or speeding. Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away. You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”
Now, let’s change the scenario. You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention. Is that legal?
The courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.
But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. communicate a desire to end it and leave?”
A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.” If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity.
Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question. Either you are “free to leave” or not.
The best way to make a record of that is to ask: “Officer am I free to go now?” And don’t just do it once. Do it more than once. Say it loud and clear, for the camera and microphones. It doesn’t matter what the answer is. If you ask the question, you’re winning.
At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop. (Yes, you can walk away from a car stop even if you’re not the passenger.)
6. “You have the right to remain silent.”
When you hear that, that is your cue to – what? It’s your cue to stop forming words and allowing them to escape your mouth!
If you want to say anything, you can say: “Officer, I realize you are doing your job but I am not a lawyer or a police officer. I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.” Repeat as necessary.
No matter what they do or say, they cannot require you to speak. So don’t. If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands. But do not speak.
7. Field Exercises
Sometimes police want to build a case for impaired driving. When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.” These are not scientifically valid and are designed to incriminate. Even completely sober people have a difficult time “passing” them. If you do them, you will fail. If you don’t, you won’t.
What to do? Don’t!
Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test. You can and should refuse to do any of these.
When you do, the police officer may invite an excuse. But don’t take that bait!
Any excuse could be incriminating. Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.” You may get asked repeatedly. If so, just keep repeating that you choose not to do them – no excuses. (Who cares if you have one leg! That’s beside the point.) It’s your legal right.
Important: (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)
8. Smile, you’re being recorded
From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.
This recording may later hurt you, or help you. Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.
Phone calls from jail are recorded for later use as evidence. Be aware of this. Avoid talking about the case in any of these contexts.
9. Keep your cool
if arrested. Hitting the panic button will only make it worse. Police may try to exploit your trauma and emotional upset. Remain calm, cool, collected.
The long game can be won, by playing defense in the short game. You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be, a bail bond agent. Most people will be able to get out within a few days or less.
Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.
Have a comment? You are welcome to leave your comments and responses below.
On September 16, 2017 the Board of Directors of Minnesota NORML elected Thomas C. Gallagher to the position of Chair of the Board. Gallagher is a Minneapolis Criminal Lawyer who twice campaigned for election as a Representative in the Minnesota House in District 61B (incumbent Paul Thissen) in 2014 and 2016. He was the endorsed candidate of Republican Party of Minnesota in both election cycles.
“Minnesota NORML is a non-partisan Minnesota Nonprofit with 501(c)(4) status,” Gallagher noted. “Our goal is legal marijuana in Minnesota for responsible adult use. Minnesotans should have equal rights to cannabis as to beer and wine. This means age 21 and older, taxed and regulated the same as beer and wine, and legal small batch home production.”
Thomas C. Gallagher, Chair, Minnesota NORML
“Home grow” Gallagher said, “is essential. Ending marijuana prohibition is only incidentally about marijuana; it is really about personal freedom. We want to empower the People, support Liberty for all. With legal home grow, anyone can grow their own cannabis for medicinal or personal use with little money. Freedom should not be limited to people with money.”
“Now that all major polling shows majority support for legalization of marijuana (and a super-majority for medical marijuana), why – in a democracy – is the will of the People not yet enacted into law?” Gallagher asks.
If our elected officials lack the political courage to enact the will of the People, then we say “Let the People Decide!” Bills in the Minnesota legislature would place a constitutional amendment on the general election ballot to, finally, legalize marijuana for responsible adult use like beer and wine. Even politicians unwilling to support legalization should be able to support democracy, the vote and “allowing” the People to decide. We support these Bills.
“It’s not inevitable. There are vested interests who now profit from the current Prohibition regime fighting hard to reverse the progress we’ve made, and to stop the return of Freedom to the People of Minnesota,” Gallagher warned. “’How soon will it be legal?’ people ask me. ‘How soon will you join us working hard to make it happen?’ is my smiling reply” says Gallagher.
Limited to first-timers, this law applies to a person “who has not been previously convicted of a violation of this chapter …” And the law applies to all “controlled substances” other than heroin.
Before this 2016 law, even these amounts of marijuana wax were charged as felonies. A felony drug conviction can trigger lost jobs, lost of civil rights, immigration consequences. The law steps in the right direction.
The statutory language:
Minn. Stat. §152.025, Subd. 4 (a)(1) “the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”
one-quarter gram of hash relative to the size of a lighter
Does this mean defense lawyers will no longer need to litigate trace amount issues and cases?
Also, this new law does not apply to heroin or federal cases.
What about marijuana, including derivatives such as marijuana wax, dabs?
Small Amount Currently Plant-form Only
Minnesota law defines possession of a “small amount” of plant-form marijuana as a petty misdemeanor (not a crime, violation-fine only). Minnesota Statutes §152.01, Subd. 16 defines Small amount: “‘Small amount’ as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.”
So, 0.24 grams or less of plant-form marijuana could be charged a petty misdemeanor violation, not a gross misdemeanor.
When could quantity be charged in dosage units, rather than weight?
We can be divide these into two categories: prescription drugs and underground-economy drugs. Most people possess prescription drugs in pill form. A “dosage unit” could be one pill, or more than one, depending upon the recommendation of the drug maker, pharmacist, or prescribing physician.
For underground economy drugs, “one dosage unit” could be more than one pill, or more than one square of blotter paper with LSD on it. For example, see State v. Palmer, 507 NW 2d 865 (Minn.App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit”).
A grey area: What about edibles like THC gummies? Is one a “dosage unit?” What about a marijuana wax cartridge?
Medical marijuana produced by a legal-maker should be treated like prescription drugs.
Pre-trial Diversion & Statutory Stay of Adjudication
What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18?
They are still available for those charged with Minnesota Fifth Degree “Controlled Substance” Crime, Gross Misdemeanor, since the charge is a Fifth Degree charge against a person without prior drug convictions.
We, the People, should have our rights respected by government to marijuana and marijuana wax, equal to our rights to beer, wine and liquor.
Short of legalization, however, we should at least delete the “resinous form” exception to the definition of a “small amount of marijuana.” If Minnesota did so, at least People with a small amount of marijuana wax (42.5 grams or less) would not be treated like criminals.
Has the time come to remove marijuana from Minnesota’s Schedule 1 of the Minnesota Controlled Substances Act? Yes, the time has come. Here is an explanation of why; and how you can help make it happen before more lives are destroyed by this irrational and unjust law.
The Minnesota Controlled Substances Act (Minnesota Statutes Chapter 152) is similar to the Federal Controlled Substances Act (21 United States Code Sections 801 et seq) in that it creates lists, or “schedules” of drugs, numbered one through five.
Drugs listed in Schedule 1 are supposed to be a drug or other substance that has a high potential for abuse, has no currently accepted medical use in treatment in the United States, or lacks accepted safety for use of the drug or other substance under medical supervision. Examples of Schedule 1 drugs include the opiates, such as heroin, morphine, etc.
A “Schedule 2” drug is meant to include drugs with a high potential for abuse, a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions, and, abuse of the drug or other substance may lead to severe psychological or physical dependence. Examples of Schedule 2 drugs include cocaine, methamphetamine, and phenobarbital.
Schedules 3 and 4 are thought to include drugs less harmful or prone to abuse than those the government has listed in Schedule 1 and 2. Schedule 5 includes drug or concentrations of drugs the government thinks are less dangerous or prone to abuse relative to the drugs or other substances in schedule IV, has a currently accepted medical use in treatment in the United States, or abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.
Where has the government seen fit to categorize marijuana within this scheme? Currently, they still list marijuana as a “Schedule 1” category drug, right in there with heroin. Apparently the government views marijuana as more dangerous than methamphetamine, which is only a Schedule 2 drug.
What difference does it make? Lots. But here are two big ways it makes a difference where the government categorizes marijuana within its laws: harming people and public safety with criminalization, and harming people and public health by creating a legal barrier to legal medical marijuana treatment.
As the Minnesota Controlled Substances Act (Minnesota Statutes Chapter 152) is currently written, removing marijuana from all “schedules” listed (sometimes called “descheduling”) would have limited impact since most controlled substance crimes specifically list marijuana by name. Moving it from Schedule 1 to Schedule 2 would appear to make no difference at all, as far as criminalization is concerned.
Medical Treatment with Marijuana
How can there be a legal medical marijuana program under Minnesota law, and yet still have marijuana listed as a “Schedule 1 drug,” which is defined as having no currently accepted medical use in treatment? Is Schedule 1 marijuana really more dangerous than Schedule 2’s methamphetamine? After all, at least 23 of the 50 states now have legal medical marijuana programs and nearly half the U.S. population lives in states where medical marijuana is legal today. “No currently accepted medical use in treatment?” Really? To the contrary, marijuana is currently accepted medical treatment, across the United States.
Allowing inertia to continue marijuana in Schedule 1 has harmful implications for public health of the people of Minnesota. It creates innumerable difficulties for sick people who are just trying to treat their illness, including insurance issues. This in turn creates unfairness for the ill and disabled who have a low-income, or could be driven into the underground market for medicine.
We ought to take our laws seriously and change them to reflect reality and truth, as best we can. We need to amend Minnesota law to remove marijuana from Schedule 1, either into Schedule 2 or complete descheduling (remove from all Minnesota Controlled Substances Act schedules).
The problem: In Minnesota today, a medical marijuana patient charged with a marijuana crime is no longer allowed by the courts to tell the jury they were treating illness with marijuana.
The solution: A Bill in the 2015 Legislature would legislatively overrule the court decision that took away “the necessity defense” from medical marijuana patients facing marijuana charges.
Marijuana has been used as effective medicine for thousands of years. In the 1930s, Minnesota joined a social experiment of Prohibition outlawing the plant – even for medical use. Today though, a majority in the U.S.A. believe that medical marijuana should not be a crime.
Trial by jury limits the power of the government to enforce laws in ways that violate the conscience of the community. Yet when a chronic pain patient using marijuana as medicine is charged with a marijuana crime, but is not permitted to have their physician testify, or to testify about it themselves; there is no meaningful jury trial. When the court prevents the jury from hearing defense evidence, excluding the defense, her right to present a defense is violated.
“Necessity” has been a recognized legal defense to what otherwise would be a crime, since ancient times. The New Testament cites examples of eating holy bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Old English cases recognize the defense of necessity. It was a defense to breaking a law that the accused committed the act to save a life or put out a fire. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.
Like self-defense, the necessity defense is an affirmative defense to a criminal charge – a “lesser-of-two-evils” defense. After the accused presents evidence supporting the defense, the judge instructs the jury on the law of the defense of necessity. If the jury accepts the defense: the defendant did the prohibited act intentionally, but did so reasonably to avoid a greater evil, out of necessity; so it is not a crime.
The necessity defense was repealed by a 1991 Minnesota court decision, in State v. Hanson, 468 NW 2d 77 (Minn Court of Appeals 1991). FFI: http://wp.me/pAFjr-5U
The Minnesota Legislature can restore the rights to a jury trial and to present a defense by passing HF 542 & SF 404. The Bill restores the necessity defense to medical marijuana patients charged with a marijuana crime. Jurors have the right to know the relevant facts before judging a person’s fate.
People like Angela Brown, and her 15 year-old son, should be allowed to present a necessity defense at her trial, so the jury can then have the power to decide her case based upon the true facts, not some version of the truth manipulated by the court.
Urge your Minnesota Rep. and State Senator to support the necessity defense Bill, HF 542 – SF 404, to assure medical patients have the “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or derivatives.