The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA.
This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.
In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp CBD”). Each Sunday, we summarize a new state in alphabetical order. Today we turn to Minnesota.
The Minnesota Department of Agriculture (the “MDA”) has adopted an industrial hemp pilot plan that governs hemp cultivation in Minnesota. The MDA’s program appears consistent with the 2014 Farm Bill: “The Hemp Research Pilot Program studies the growth, cultivation, and marketing of hemp.” And it also appears that the program is consistent with certain provisions of the 2018 Farm Bill: “All first-time applicants must submit an application, pay the program fees, and pass a federal/state criminal background check. An applicant is disqualified from participating in the program if they have a controlled substance-related conviction in the last 10 years.” Minnesota hemp cultivators should therefore be aware that there will be strict requirements for hemp cultivation, unlike other states which have more relaxed rules concerning hemp cultivation.
Minnesota’s primary Hemp-CBD law is SB-12. The hemp provisions of SB-12 take effect on January 1, 2020. SB-12 will allow the sale of non-intoxicating Hemp CBD products and will impose testing and labeling requirements which are relatively strict. It will also allow Hemp CBD products to be sold to marijuana licensees if the hemp was cultivated in Minnesota, which not all other states allow (e.g., California). Per SB-12, the state health commissioner is required to create a workgroup to advise on how to regulate Hemp CBD product and submit a report to the legislature by Jan. 15, 2020. So we expect to see some kind of regulations on top of SB-12, as soon as next year.
While we’re waiting for SB-12 to take effect, there is not much guidance on most kinds of Hemp CBD products in Minnestota. The MDA states that it does not regulate food products containing Hemp CBD and instead defers to the FDA guidelines (which as we all know claim that Hemp CBD can’t be added to foods). For many other kinds of products, there just is no real guidance. And Minnesota has not yet adopted a flavored vape ban, so we don’t yet know (a) if it will, and (b) whether that would apply to Hemp CBD.
There will be a lot of changes to Minnesota Hemp-CBD laws in the future, so please stay tuned for updates.