Thanks, Republicans: THC legalization began with the 2018 federal farm bill
Product on display at Nothing But Hemp in St. Paul. The edible THC products contain 5 milligrams of Delta 9, which is the psychoactive drug causing people to get high, and 5 milligrams of CBD, which people use for “wellness.” Photo by J. Patrick Coolican/Minnesota Reformer.
After Minnesota Republicans in the Legislature couldn’t get their story straight last week about whether they had intended to allow Democrats to legalize marijuana edibles and drinks, the big joke was that they’d sampled the supply and accidentally legalized it.
But it’s even funnier, because the Minnesota GOP may not have been the first Republicans to accidentally allow us our God-given right to get weird.
In case you took too many edibles and have been out of it, a quick review: On July 1, Minnesota kinda, sorta made it so anyone could sell THC edibles and drinks in 5-mg increments to people 21 and older, so long as the products are in a child-proof package and aren’t marketed to kids.
But the story of THC legalization here begins much earlier, in Washington, D.C., upon passage of the 2018 federal farm bill.
That bill “removed hemp from the Controlled Substances Act, paving the way for the wholly legal cultivation, possession, sale and distribution of the hemp plant,” according to a memo from the law firm Perkins Coie.
Hemp, for all intents and purposes, however, is marijuana. You think it’s a ropey necklace kids wore in the 1990s, or the fiber used to make fancy shirts now.
But hemp is cannabis sativa. It’s the same species of plant used to make the intoxicating flower and other products derived from it.
The difference is that — as approved by the federal government in 2018 — legal hemp can only contain .3% THC by weight.
That seems like not much.
Oh, but it is. In fact, as we’ve learned the past week in Minnesota, you can legally stay under the .3% ceiling and make a 5-mg THC edible, which is enough for most people to get a buzz.
Anyway, Minnesota is now allowing 10 of those edibles per package, and there’s no limit to how many packages you can buy.
So where’s the .3% come from?
The authors of a recent law review article say the .3% standard comes from a 1976 scientific journal article by a Canadian researcher, Dr. Ernest Small, who writes that he “arbitrarily adopt(s) a concentration of .3% ∆9 THC (dry weight basis) in young, vigorous leaves of relatively mature plants as a guide to discriminating two classes of plants.” (Emphasis added.)
The law review article referenced above appeared in the Kentucky Journal of Equine, Agriculture and Natural Resource Law.
Here’s why it’s interesting that it comes from Kentucky: That’s the state represented by then-Senate Majority Leader Mitch McConnell when Congress passed the 2018 farm bill, with McConnell’s enthusiastic support of the hemp provisions.
Michelle Bodian, who is counsel for cannabis-focused law firm Vicente Sederberg and was a co-author of that law review article, told me that Kentucky and other states with roots in the tobacco industry have strong hemp — think: cannabis — potential. They have machinery, soil, drying barns and expertise in botany.
McConnell may have thought he was expanding the production of hemp for its strong fibers and other biomass uses, but that .3% loophole meant he was legalizing THC.
“2018 was the original legalization-without-Republicans-knowing,” said Jason Tarasek, who’s been lobbying on the issue in Minnesota for several years.
That’s not where the story ends, however.
The federal Food and Drug Administration was supposed to promulgate rules after the 2018 farm bill passed.
It’s been nearly four years, and two separate administrations failed to offer any guidance.
Absent the federal government, the states have stepped in on their own to start regulating this otherwise mostly unregulated class of products, from tinctures and creams to edibles and drinks.
Some states have taken a status quo or conservative approach to these new hemp products. “Minnesota is on the other end of the spectrum, with a highly permissive environment,” Bodian said.
Which is how I found myself at Nothing but Hemp on Grand Avenue in St. Paul Thursday morning. Rep. Heather Edelson, DFL-Edina, was joined by Mayor Melvin Carter and a few other dignitaries to check out the inventory and talk to the proprietor, Steven Brown.
Brown is an American dream story, the son of immigrants — an Egyptian dad and Chilean Jewish mom. He told me he served in the Marine Corps, wound up in marketing and had a California cannabis client. He decided to get into the business himself.
On July 1, his company sold 60,000 individual THC edibles, he told the assembled group. They are still trying to fill 800 orders for delivery. He expects to sell 500,000 individual 5-mg pieces in a given month, but at the moment can only get his hands on 250,000.
The law that went into effect July 1 included just a handful of regulations, but the mere existence of those rules means lawmakers “are expressly allowing THC in food and beverages for the first time,” Tarasek said.
There’s no licensing requirement, no special taxes, no mandate that sellers be a certain distance from schools or daycare centers. The Board of Pharmacy will ostensibly regulate these intoxicants, even though the agency has just 23 employees, and they’re busy overseeing thousands of pharmacists and pharmacies.
Edelson, aware of how chaotic it all seems, has turned to the cities — including St. Paul, Minneapolis, Golden Valley, Edina, Bloomington and St. Louis Park — hoping they’ll step in where the Legislature didn’t.
She’s encouraging licensing; regulations about where the shops can locate; and enforcement of the packaging and dosage rules.
Edelson wants a robust cannabis regulatory bill at the Legislature next year, but Lord knows who’s going to be running things, so for now, this will have to do.
Carter said he’s glad for the new law and happy to craft an ordinance with input from industry experts.
“The impact of prohibition has been so harmful in such a targeted way,” he said, referring to the countless Black men and their families who for decades have been casualties of the nation’s mindless War on Drugs
For all my snickering at the Legislature’s stoned Mr. Magoo act on this issue, and for all my misgivings about the lack of regulations or taxing authority, Carter is right.
So, to Mitch McConnell, just this one time: Thanks.
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J. Patrick Coolican