Because the Office of Medical Cannabis doesn’t have the power to regulate raw flower, inspectors can’t take samples to see if it is legal or illegal.
By Peter Callaghan, MinnPost
Minnesota’s cannabis regulators say they have a plan to fill a gap in state law that could be letting some hemp retailers sell marijuana flower without consequence.
Charlene Briner, the interim director of the new Office of Cannabis Management, said Thursday that she is working with other agencies to provide a temporary method to inspect and test raw cannabis flower to make sure it does not violate current law.
She said the agency will look into using inspectors from the Office of Medical Cannabis and the Department of Agriculture to exercise the Office of Cannabis Management’s authority to stop the sale of cannabis flower that is illegal marijuana masquerading as legal hemp.
“OCM is evaluating how to leverage existing enforcement capacity at the Office of Medical Cannabis to act on OCM’s behalf and how we can develop capacity to test raw cannabis flower,” Briner said.
“We’ll be sharing more about those plans as we put them in place,” she said.
To be legal to sell now, hemp flower must contain only 0.3 percent delta-9 THC or less. Such hemp plants do not have enough THC to be intoxicating when eaten or smoked. But by processing the hemp for edibles and beverages, the THC content can be enhanced to produce an intoxicating effect.
Some hemp retailers and smoke shops have been selling raw cannabis flower that might or might not exceed those legal limits. Hemp inspectors have not acted against such sales—or even to test the flower—because while the Office of Medical Cannabis regulates hemp sales, the law doesn’t give it any authority over unprocessed flower.
The loophole became public late last year when former Office of Medical Cannabis director Chris Tholkes discussed it on the national podcast Weed Wonks. She said her inspectors have seen sales of raw cannabis flower that the stores claim is legal hemp but that the inspectors suspect is not.
The plan to address the gap was discussed Thursday during a meeting between state regulators and leaders of the associations representing county sheriffs and local police chiefs. While the new cannabis law envisioned civil regulation of recreational marijuana, it also foresaw law enforcement retaining its role in enforcing major crimes such as illegal trafficking of cannabis.
Local police could act against questionable sales of raw cannabis flower. Whether local law enforcement has the interest or capacity to do so in the interim period between illegal and legal sales has been in question.
Briner called the meeting Thursday productive and said it will lead to ongoing communications between state regulators and local law enforcement as the complicated law gets implemented.
“I expect it will be the first of many with them about our respective enforcement roles for both this transitional period, and on an ongoing basis,” she said.
The problem emerged from the way House File (HF) 100, the massive recreational marijuana law, provided for the transition to legalization. Possessing and growing small amounts of marijuana became legal August 1, but the retail sale of the same drug won’t be allowed until the cannabis management office drafts rules and issues licenses. That isn’t expected for another 15 months.
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Over the same transition period, the Office of Medical Cannabis is charged with regulating the hemp edibles and beverages business that was made legal in 2022. But the temporary authority in HF 100 to regulate hemp products only included products made by processing hemp, not the raw flower itself.
That gap in the law has allowed some hemp retailers to sell raw flower that might—or might not—exceed the THC potency limits that separate legal hemp from illegal marijuana. And because the Office of Medical Cannabis doesn’t have the power to regulate raw flower, inspectors can’t take samples to see if it is legal or illegal.
That’s where Briner’s proposed solution comes in. The Office of Cannabis Management has the legal authority to stop illegal flower sales but not the staff to do so. It can essentially contract with the Office of Medical Cannabis and the Department of Agriculture that regulates hemp on the farm to empower its inspectors to exercise OCM’s authority over illegal marijuana sales. Government calls such arrangements interagency agreements.t
Illegal sales are subject to civil penalties under the new recreational marijuana law.
All of this is temporary. Once the Office of Cannabis Management issues retail sales licenses, those retailers will be allowed to sell the types of intoxicating cannabis flower that cannot legally be sold now.
Briner acknowledged the frustration among some hemp retailers who are trying to follow the law but are competing with stores that are selling raw cannabis flower that might well be illegal. She also asked for patience, as it will take a few months to get the agreements and the testing capacity set up.
The Legislature could solve the problem itself when it convenes February 12 by amending the law and giving the Office of Medical Cannabis authority to regulate raw cannabis flower in addition to edibles and beverages. But if the interagency agreements are already set up once the session gets in full swing, such a legal change wouldn’t be needed.
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