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CBD, Hemp & Law in Minnesota

Is CBD legal in Minnesota?

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:

  1. CBD has desirable health and wellness benefits.
  2. CBD has no psychoactive effect, unlike psychoactive drugs such as alcohol, etc.
  3. 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

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, called “CBD oil.”

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 Resin

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?

The Problem

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 of CBD-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 stHemp 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:
  1. It’s not a crime if it’s not listed in the federal or state version of the Controlled Substances Act, CSA schedules.
  2. Both “marijuana” and THC are listed; in both Minnesota and federal CSAs.
  3. CBD is not listed in either the Minnesota or the federal CSA, and so is not illegal as CDB.
  4. The only commercially feasible sources for CBD are “marijuana,” and to a lesser extent “hemp” – both legally-defined categories of the cannabis plant.
  5. CBD sourced from “marijuana” plants, is a crime to possess.
  6. Hemp sourced CBD (or theoretically another non-“marijuana” source) is not a crime to possess. It is unregulated.
  7. 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.
Proposed solutions:
  1. Simple solution: Completely legalize marijuana.  Then legally source CBD from “marijuana” – a better source for safe, quality CBD.
  2. 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.
  3. Baby step: Law authorizing and regulating the maximum THC-levels of CBD products, regardless of plant source.

The Legal Grey Areas

Historical development

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.

Conflicts

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:

  1. Restrictive Federal Hemp Research law (“Farm Bills”), vs.
  2. federal statutory recognition of State authority, vs
  3. preemption of State laws by federal laws, vs
  4. 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.

Minnesota state sovereignty

Many do not know that Minnesota can remove or re-schedule marijuana out of Schedule 1, without regard to the federal CSA Others states have.  The State of Oregon rescheduled marijuana to its Schedule 2 in 2010.

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.

chlorophyll

chlorophyll

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 not in 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.

In January 2018, U.S. Attorney General Sessions issued a Marijuana Enforcement Memorandum that rescinding the Cole Memorandum, and asking federal prosecutors to decide how to prioritize enforcement of federal marijuana laws. The Sessions memorandum asks local U.S. Attorneys to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General … .”

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

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.

IN MINNESOTA

Minnesota State Laws

General rule:
Minnesota flag

Minnesota law

Under Minnesota law, anything sourced from “marijuana,” is marijuana and as a result criminal to sell or possess in any amount.

Exceptions:

  1. Possession or gifting 42.5 grams or less plant-form marijuana, “a small amount,” has been decriminalized.
  2. Marijuana-CBD legally from the Minnesota Medical Marijuana program by a state authorized patient; or medically prescribed, pharmaceutical Epidiolex.
  3. 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? 
  1. Minnesota:  Legalize marijuana for responsible adult use, including small batch home-production commensurate with home-production of beer and wine.

  2. 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.

  3. Baby step solutions – detailed above.

Thomas C. Gallagher, Minneapolis Criminal Lawyer

Thomas C. Gallagher, Minneapolis Criminal Lawyer

DISCLAIMER:  Nothing in this article, comments, or this blog is legal advice.

COMMENTS are welcome below.

Author Thomas C. Gallagher is a Marijuana Lawyer with a criminal defense practice in Minneapolis; and is a Minnesota NORML Board Member.