Minnesota legal loophole could stir up THC trouble for hemp vapes

A Minnesota court says that a liquid mixture containing THC, even if it is derived from hemp, is a Schedule 1 Controlled Substance under state law.

The state Court of Appeals made the ruling when it upheld a criminal conviction.

Justices said that tetrahydrocannabinols are included under the state’s Controlled Substances Act. They ruled that the law does not make any exception for hemp or for a substance or mixture with a concentration of 0.3% delta-9 THC or less on a dry-weight basis, said cannabis attorney Neil Willner with New York law firm Royer Cooper Cohen Braunfeld LLC.

The criminal case involved a man convicted of two counts of possession in June 2019, including one for possession of leafy plant material and the other for possession of vape cartridges.

In his appeal, the man argued that the state needed to prove that the leafy plant material and the vape cartridge each contained more than 0.3% THC.

He was cleared on possession of the leafy plant material because the forensic scientist on the case didn’t test its concentration. But the court upheld the verdict on the vape possession charge because the state’s 0.3% THC threshold only applies to “leafy plant material” and does not include liquids.

While the federal government’s rewrite of the Schedule 1 definition prohibits possession of THC, “except for tetrahydrocannabinols in hemp,” Minnesota lawmakers left out that language in its Schedule 1 statutory rewrite, setting it apart from federal law, explained Judge Matthew E. Johnson.

The court’s decision could have a far-reaching impact on the Minnesota hemp industry, Willner said.

“Every hemp processor or product manufacturer, or even anyone who possesses any hemp liquid product in the state, could be subject to criminal penalty, as absurd as it sounds, simply because CBD tinctures or vape cartridges, if they contain a full-spectrum extract, have minimal amounts of THC,” Willner told Hemp Industry Daily.

Separately from the possession case, Willner said Minnesota law “provides that a product containing nonintoxicating cannabinoids may be sold for human or animal consumption, so long as certain testing and labeling requirements are met.”

Accordingly, Willner added, the Minnesota Board of Pharmacy has interpreted that to prohibit delta-8 THC, as an intoxicating substance that “cannot be directly extracted from hemp in any significant quantity.”