Local Policy Issues

January 17, 2022 - CBD and Delta 8, 10 and THC-0

Many of us have been discussing issues around the spread of new extracts called Delta 8, Delta 10 and Delta 0.  Around the Holidays I received 2 bits of information that I have wanted to pass along.   The first is a Star Tribune article on the problems many CBD retailers are having in Minnesota.  https://www.startribune.com/minnesota-agencies-cbd-sellers-are-heading-to-a-battle-next-year/600130081/  What I believe they don’t say in the article is the reason many CBD products are being removed is that they exceed the .3% THC threshold. In Minnesota, and I think nationally, a CBD product to be made commercially available can contain no more than .3% THC. As many farmers soon learned the percentage of THC in their hemp crop is almost impossible to control, as weather conditions will alter this yield.  

So just a touch of background about Delta 8 etc. Delta 8, Delta 10 and THC-0 are extracted from CBD hemp plants. They are limited psychoactive drugs and are classified as schedule one drug by the government. They have been for sale in Minnesota as a “legal” equivalent of cannabis/THC. Because the extraction process requires lots of chemicals the federal government strongly recommends avoiding use of these products because of health concerns. We have been discussing whether these extracts are legal in Minnesota. I have attached a letter that we received regarding a discussion on this issue (the letter focuses on Delta 8 but is would also cover Delta 10 and THC-0). It draws the conclusion that because the law states that CBD sales must not contain any intoxicating substance, and these substances are extracted from CBD production, therefore these products are prohibited for sale in the state of Minnesota. I am including language from the letter here

 According to the Minnesota Board of Pharmacy, “Minn. Stats. §151.72 does not allow for the sale of products containing Δ8-THC.” (Minnesota Board of Pharmacy, Statutes, Rules, and Guidances 897th Meeting of the Minnesota Board of Pharmacy, June 16, 2021. https://mn.gov/boards/assets/Statutes%20Staff%20Analysis%20Document%20June%202021_tcm21-485385.pdf) Two provisions in that law operate to make this product illegal for sale in Minnesota.

Minnesota Statutes Chapter 151 regulates the sale of certain cannabinoid products and makes clear that the scope of the section applies only to the sale of products that contain “nonintoxicating cannabinoids extracted from hemp.”[1]  Minn. Stat. Sec. 151.172, subd. 2 (emphasis added). Additionally, the law requires that the cannabinoid may only be sold if it is nonintoxicating:

 Sale of cannabinoids derived from hemp. Notwithstanding any other section of this chapter, a product containing nonintoxicating cannabinoids may be sold for human or animal consumption if all of the requirements of this section are met.

Minnesota Department of Corrections report on Drug Offenders in Prison

2 graphs provide data published by the MN Department of Corrections in their 2019 report.