Minnesota agencies call CBD and other hemp-derived products illegal

Updated: Dec 20, 2021

Minnesota Cannabis Association prepares to push back

CBD tinctures. Delta-8 THC. Hemp edibles. These are all apparently considered illegal by Minnesota’s Department of Agriculture and the Board of Pharmacy, the Minnesota Cannabis Association discovered in recent a conversation with the Department of Ag.

Minnesota hemp companies have been making and selling hemp extracts with the understanding that they were made legal by the 2018 federal Farm Bill and related state-level statutory changes.

Intended to legalize hemp in all its forms, the Farm Bill defined “industrial hemp” as “the plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

This definition is repeated verbatim in Minnesota’s "Industrial Hemp Development Act.” Thus, it’s clearly stated in federal law and Minnesota law that hemp extracts are legal.

But in a recent virtual meeting between hemp manufacturers, hemp associations and regulatory agencies, Minnesota Cannabis Association board member Steven Brown stumbled upon the discrepancy.

As he was asking a question about standards for processing facilities, Brown mentioned making a tincture out of distillate as opposed CO2 extraction or hemp-flower processing.

“They stated later in the meeting that tinctures are illegal,” he said. “Then this morning I received information from the Minnesota Board of Pharmacy, sent by a colleague.”

A representative from the Department of Agriculture told Brown that tinctures couldn’t be regulated as food, dietary supplement and considered a drug.

“The problem here is some of the products you’re mentioning here, Steven, would not be legal food by our definition,” said the Department of Agriculture rep on the call. […] “The reason for that is all these other cannabinoid products are governed by the Board of Pharmacy.”

According to rules laid out by the Minnesota Board of Pharmacy, very few hemp-derived products are actually legal in the state. These include hemp seed oil, which contains no THC or CBD, and hemp flower, as long as it tests under the 0.3% THC threshold. (There are potential problems even with hemp flower, as it can exceed THC limits after passing a field test and being harvested.)

The Minnesota Board of Pharmacy cites the federal Food & Drug Administration as its guide.

“After enactment of the Farm Bill, the FDA issued a statement regarding the hemp provisions,” the agency wrote. “The statement confirms that the Farm Bill did not legalize products made with CBD (or other cannabinoids) extracted from hemp.”

Furthermore, the document says, the FDA doesn’t allow cannabinoid extracts to be sold as a dietary supplement. This means CBD and other products are likely to be considered drugs by default — regardless of whether the retailer labels and markets them as such. ("Simply excluding such claims from the label doesn’t make it legal to sell a product when the seller and the purchaser both understand that the product is intended to be used as a drug,” the Board of Pharmacy wrote.)

There is, in theory, potential for hemp extracts to be sold as drugs. But they’d need to be approved by the FDA and made by an FDA-registered, board-licensed manufacturer, following rigorous FDA procedures. At this time, one CBD product has been approved by the FDA as an anti-seizure medication.

But many hemp manufacturers don’t want their products to be considered drugs, creating a conundrum.

“We disagree with their interpretation based on federal guidelines,” said Brown who co-owns the hemp retail shop. “Eighty-five percent of products on the shelves will have to be pulled. […] This affects so many businesses. So many families. Our business will probably have to shut down in Minnesota if we don’t turn this around.”

And, according to Brown, the association considering options to save Minnesota farmers and Minnesota businesses that sell CBD/hemp derived products.


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