“We’re seeing lots of hemp flower—doing air quotes—out in the marketplace, and we don’t have the regulatory authority over that flower.”
By Peter Callaghan, MinnPost
This story was originally published by MinnPost.
A loophole in the state’s new recreational marijuana law allowing the sale of high-potency raw cannabis flower to go unregulated will be the subject of a summit this week between regulators, law enforcement and local government associations.
The state Office of Cannabis Management is convening the January 11 meeting, along with hemp regulators at the state Department of Health, to discuss with sheriffs and police chiefs how best to respond to possible sales of marijuana in some registered hemp stores.
The meeting comes more than a month after it was reported that the new law passed last May did not include raw cannabis flower in the products that would be regulated by the Office of Medical Cannabis. That agency under the state Department of Health is charged with keeping an eye on the sale of hemp-derived edibles and beverages until a permanent Office of Cannabis Management is established.
But the problem comes from how the law describes the products the medical cannabis office regulates. Because it is assigned the regulation of products made from hemp, and not the raw hemp flower itself, it has concluded that it has no jurisdiction over unprocessed raw flower.
Some hemp retailers and smoke shops are selling raw flower that is portrayed as hemp but likely contains high concentrations of a compound known as THC, which, when smoked or vaped produces a high similar to marijuana. There is some debate whether such products are legal because they might test as hemp because they contain less than 0.3 percent THC—the federal defining line between hemp and marijuana. But Minnesota is what is dubbed a “total THC” state because it includes all THC compounds in the measurement.
Regardless of the measurement standard, the inspectors employed by the medical cannabis office do not appear to have authority over raw flower, so they are not confiscating or testing it to see if it exceeds concentration levels.
“We’re seeing lots of hemp flower—doing air quotes—out in the marketplace, and we don’t have the regulatory authority over that flower,” said Chris Tholkes during the podcast WeedWonks. That interpretation remains at the agency after Tholkes left in December for a job with the Minneapolis Department of Health.
“State law is clear that illegal cannabis sales are a criminal matter and that enforcement responsibility lies with local law enforcement,” said a spokesman for the agency via email. “The Office of Medical Cannabis continues to respond to incoming inquiries from law enforcement agencies with questions about these types of issues and is developing a strategic outreach initiative to law enforcement on this topic.”
The new Office of Cannabis Management that will take over all cannabis regulation in 2025 has legal and regulatory permission to go after illegal sales. It could confiscate, test and impose civil fines. But because it is not yet set up to do so, its leadership is not taking action.
“The legislature was deliberate in giving temporary regulatory authority for hemp-derived cannabinoid products to the Department of Health Office of Medical Cannabis (OMC) during this transition period in anticipation of the time it would take to build a new agency from the ground up,” wrote Charlene Briner in response to questions about the gap in authority. Briner is helping implement the new law in the interim while state officials work to hire a director for the Office of Cannabis Management.
“The Office of Medical Cannabis continues building out its field review operations and is working closely with the Office of Cannabis Management to harmonize our regulation of cannabis products with an eye toward the eventual integration of our operations under one regulatory umbrella,” she wrote.
But like the Office of Medical Cannabis, Briner pointed to the cops.
“The law is also quite clear that sales of products such as smokable cannabis flower and other cannabis derived products are not legal until adult cannabis licenses are issued, and that local law enforcement retains authority over illegal activity,” Briner wrote. “OCM and OMC are committed to working with law enforcement to understand this complex and changing landscape.”
Jeff Potts is the executive director of the Minnesota Chiefs of Police Association. He said he is hoping for clarity on what the state’s role is and what local police agencies’ role is. When the state first legalized hemp-derived edibles and beverages in 2022, police departments usually reported apparent violations to the state Board of Pharmacy, which was given regulatory enforcement of the new industry. The new recreational marijuana law transferred that authority — first to the Office of Medical Cannabis and then to the Office of Cannabis Management in 2025.
“Law enforcement agencies are looking to the Office of Cannabis Management to figure out a plan for how to deal with this,” Potts said. Hemp retailers trying to follow the law are asking anyone—the state regulators or local police—to intervene with retailers who are violating the law.
“Because the Office of Cannabis Management isn’t prepared for this, they’re trying to have law enforcement do it,” Potts said. “But it is technical, there are not a lot of resources to test the products, and legally it is very hard for law enforcement to even seize the product to do the testing.
“We’re in this weird, in-between, period of time where no one seems to be able to take the lead and provide adequate resources and testing and all the things that goes into assuring that these products are safe,” Potts said. “I’m hopeful that the meeting we’re going to have with OCM produces some guidance in the interim.”
The new law envisions two types of enforcement: civil actions and fines by regulatory agencies and criminal charges by law enforcement. But the latter is most likely going to be reserved for large-scale operations that are illegally growing, importing or selling marijuana outside state limits.
One of the philosophical pillars of House File 100 was to shift from a criminal justice regime to a civil regime when it comes to cannabis regulation and to replace criminal charges with administrative citations. For the state to now say the solution to the raw flower regulatory gap is to call the cops is “antithetical” to the philosophy of legalization, said one of the advocates for the change.
“That was the entire point of legalizing the damn thing was to bring a vast majority of these issues under administrative fines and penalties rather than criminal ones,” said Leili Fatehi, the campaign manager for MN is Ready and the partner in a cannabis policy consulting firm. “Especially in a world where there has not been agency guidance, so the retailers know what they can and can’t be selling, having cops show up is not helpful.”
In the meantime, retailers are wondering why the state is regulating their sales so strictly while letting apparently illegal sales go on, sometimes right down the block. David Mendolia owns a hemp retail store on Snelling Avenue North in St. Paul. He said his reports of apparent illegal sales have not gotten a response from the state or police. In a text exchange with an Office of Medical Marijuana inspector, Mendolia was told the state had no jurisdiction over flower and that the inspector didn’t refer the allegation to St. Paul police because “…I’d be surprised if they want to push the issue.”
Mendolia said his frustration comes from regulators who “come through and nit-pick us on compliant products for minor infractions about labeling and then they’re powerless to actually do anything about the criminal sale of marijuana.
“I feel so bad to be trying to follow the rules and then have them say, ‘Oh, sorry, we can’t stop places from selling what we all know is weed,’” he said.
Mendolia said he knows other shops are selling illegal products because his customers ask him for the same or similar products—that is, raw flower that can be smoked or vaped to produce a high. While some consumers do smoke actual hemp flower as a way of delivering CBD, it doesn’t get them high, and it is not a common delivery method. That’s why Mendolia thinks most of what is being sold as raw hemp flower is actually marijuana.
Some customers suggest that he isn’t smart enough to figure a way around the state rules the way other stores do, he said.
“I don’t feel stupid for following what I know the rules ought to be,” he said. “But at the end of the day, I’m losing business. You just hope there’s some sort of judicial Karma that’s going to come around and do something about it. It just hasn’t happened.”
Some sellers claim that what they sell is legally hemp flower but with high concentrations of a cannabinoid THC-a. Some raw flower can contain 0.3% or less of THC Delta-9 but have higher THC-a concentrations that when heated through smoking or vaping does produce an intoxicating effect. Is it legal?
“While misinformation and misunderstandings are not uncommon when it comes to cannabinoids and Minnesota’s hemp law, some incorrectly believe THCa flower is legal,” wrote Carol Moss of the Hellmuth & Johnson law firm. “Contrary, selling flower containing THCa is illegal under Minnesota law and puts the retailer and consumer at risk of selling or possessing a controlled substance.”
“As of July 1, 2022, a hemp product may contain no more than 0.3% of any type of THC,” Moss wrote. “These products may have been compliant under the pre-July 2022 law changes but are most definitely not compliant with current Minnesota law.”
Said Mendolia: “Call it what it is. It’s pot.”
A legislative fix that would add raw flower to the Office of Medical Cannabis’ regulatory jurisdiction is possible once the 2024 session convenes. In December, prime Senate sponsor of HF 100 Lindsey Port, DFL-Burnsville, said there could be “space for clarification.” She did not respond to requests for an update.
Rep. Zack Stephenson, the Coon Rapids DFLer who sponsored the bill in the House, said he was “open to the conversation.
“I imagine we’ll be talking about a number of changes this spring,” Stephenson said.
Other attorneys practicing in the emerging field of cannabis law think the state’s recreational marijuana law gives the Office of Cannabis Management jurisdiction right now to go after illegal sales. That is, the agency doesn’t have to wait until rules are written and licenses are issued to intervene. And nothing in law eliminates the legal authority of police to act against illegal sales.
“The office has full power because that section was effective as of last August,” said JT Schuweiler, an attorney with Fox Rothschild who has a multi-state cannabis law practice based in Minneapolis. “They have full power to impose a civil penalty on anyone, any person, who sells cannabis flower. That can be a drug dealer. It can be someone in a shop. Someone in a hemp retailer who is selling something that’s not hemp anymore, it’s cannabis flower.”
The staffing issue is different from the question of legal authority, Schuweiler said.
“For OCM to say we don’t have any authority until everyone is licensed doesn’t make much sense. Then why would anyone get a license?” he said. “If you sell cannabis flower then you are going to be subject to civil penalties.”
But he said he isn’t surprised that some sellers are pushing the edges of the law to see how far they can go.
“That’s been the case since we’ve had hemp-derived edibles,” Schuweiler said. “People who want to operate legitimately are absolutely feeling the brunt of this more than anyone else.” But there is risk because if anyone—state agencies or local police—do take action and a registered seller loses their permission to sell, they would likely be blocked from getting recreational marijuana licenses next year. Among the many criteria for licensing is this: “never have had a license previously issued under this chapter revoked.”
Would a registration under the temporary hemp regulations count as a license under this provision? Schuweiler said he thinks it does.
“You’re not going to be able to compete for licenses if you keep getting fine after fine after fine,” he said.
Both the Office of Medical Cannabis and the Office of Cannabis Management have been in flux. After Tholkes’ resignation in December, the Department of Health has designated Alex Hooper as the interim head. Briner remains the interim director of the Office of Cannabis Management after a failed attempt to hire a permanent boss there, but the new agency has filled several key positions, including Max Zappia as Implementation Chief Regulatory Officer.
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Photo courtesy of WeedPornDaily.
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