UNCERTAINTY AND CANNABIS LAW
July 14, 2023Obviously, there is a lot of uncertainty about cannabis regulation in Minnesota. Almost immediately after passage, there were directly opposing interpretations of the law and confusing information put out across Minnesota news outlets.
For example, we are frequently asked these days whether smokable hemp flower can be sold. The Department of Health has issued guidance saying that no smokable products can be sold at all even if only hemp flower. The Department of Health relies on this portion of 151.72, Subd. 3(b)(1):
(b) A product containing nonintoxicating cannabinoids, other than an edible cannabinoid
product, may be sold for human or animal consumption only if it is intended for application
externally to a part of the body of a human or animal. Such a product must not be
manufactured, marketed, distributed, or intended to be consumed:
(1) by combustion or vaporization of the product and inhalation of smoke, aerosol, or
vapor from the product . . . .
If you read it carefully, it is talking about products containing “nonintoxicating cannabinoids.” Under 151.72, Subd. 1(k), “nonintoxicating cannabinoids” has a narrow definition:
“Nonintoxicating cannabinoid” means substances extracted from certified hemp
plants that do not produce intoxicating effects when consumed by any route of administration.”
A CLOSER LEGAL LOOK AT SMOKABLE HEMP FLOWER
Because ‘nonintoxicating cannabinoids’ is defined as “substances extracted from certified hemp,” some of us believe there is a good argument that smokable hemp flower is permitted under the law because the law prohibits smokable substances “extracted from certified hemp,” but not hemp flower itself.
Unfortunately, at this stage, the regulators believe smokable hemp flower is not permitted so even though we believe the reasonable interpretation of the statute is to allow smokable hemp flower, selling hemp flower puts you at risk for regulatory action.
Another gray area is in the logos and brand designs. Under Minn. Stat. 342.64, Subd. 1(5), a cannabis business cannot use any advertisement or label that “includes an image designed or likely to appeal to individuals under 21 years of age, including cartoons, toys, animals, or children, or any other likeness images, characters, or phrases that is designed to be appealing to individuals under 21 years of age . . . .” Some have taken this to mean cannabis businesses cannot incorporate any form of cartoon image. We, however, believe that it prohibits cartoons that may appeal to children but not all cartoons necessarily. We do not yet know how the Office of Cannabis Management is going to interpret this portion of the law, so there is a lot of uncertainty around it.
LEGAL EXPERTISE TO HELP YOUR BUSINESS
These are just two quick examples of the kind of uncertainty that you will have to work through as you plan for and open your business. This is why it is important to have Minnesota cannabis lawyers that you can speak with as questions arise. Contact Garner, Ginsburg & Johnsen, P.A. to get guidance on your specific legal issue.