Minnesota court explains cannabinoids made from hemp in liquid form (but not in leaves!)

We don’t often write about criminal cases, but a recent Minnesota Court of Appeal ruling caught my eye because of its potential impact on the Minnesota people and businesses that process, manufacture, own, or sell hemp / CBD Minnesota. This judgment affects manufacturers, processors, sellers, distributors and consumers of all liquid forms of hemp / CBD.

Let me explain. State troopers were executing an arrest warrant in a house in Brainerd, Minnesota. The officers found the defendant in the apartment and observed items used for smoking cannabis (a pipe, cigarette paper, a grinder and a lighter) and a plastic bag. The officers then obtained a search warrant and found three pounds of “leaf plant material” and 89 vaporizer cartridges containing an “amber liquid”.

The defendant was tried and convicted of possession of a controlled substance, marijuana, and other offenses not relevant here.

Photo by HighGradeRoots / Getty Images

The defendant appealed the marijuana convictions. His arguments included that the state could not prove beyond doubt that the substances it possessed had a delta-9 THC concentration greater than 0.3% on a dry weight basis. The defendant relied on a recent amendment to Minnesota law defining marijuana to specifically exclude hemp. The defendant alleged that the state could not prove that he owned marijuana as opposed to hemp.

The appeals court partially agreed to its review of the evidence. However, the dish made a distinction between “leaf plant material” and tetrahydrocannabinol in liquid form. Regarding the former, the court ruled that the state’s medical examiner did not have sufficient evidence to conclude that the foliage plant material was marijuana and not hemp. The court overturned the defendant’s conviction regarding the “foliage plant material”.

So far so good for the Minnesota attorney’s office, who competently represented the defendant on appeal.

However, the appeals court had a different opinion on the vaporizer cartridges due to a quirk in the Minnesota Controlled Substance Act. To understand the court’s reasoning, it is important to understand that Minnesota has different legal definitions for “marijuana” and “tetrahydrocannabinols”. I’ll skip parsing the statutes and go straight to the end:

“Contrary to the definition of marijuana, the Minnesota List I listing of tetrahydrocannabinols is no exception for hemp or any substance or mixture with a concentration of delta-9 tetrahydrocannabinol of 0.3 percent or less on a dry weight basis. ”

Since the state found that the vaporizer cartridges contained a certain amount of tetrahydrocannabinols, the state’s evidence was sufficient to support the defendant’s conviction.

This means that a “liquid mixture” containing tetrahydrocannabinols is a List I controlled substance under Minnesota law. The state does not need to prove that the blend contains delta-9 tetrahydrocannabinol in concentrations greater than 0.3 percent on a dry weight basis.

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While the Court of Appeal can perhaps be commended for its literal approach to legal interpretation, the effects of this judgment produce terrible practical results. It is now legal to have cannabis in the form of “leaf plant material” containing a delta-9 tetrahydrocannabinol at a concentration of less than 0.3 percent on a dry weight basis. (Hemp, in other words). But it is a crime to have a “liquid mixture” that contains tetrahydrocannabinol, regardless of its delta-9 THC content.

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This means that companies or persons who process, manufacture, sell or own hemp in liquid form can be prosecuted. Presumably, a “liquid mixture” that contains tetrahydrocannabinol includes tinctures, beverages, and possibly certain cosmetics and other products. As this case shows, it certainly contains vape cartridges.

What is the solution? I assume an appeal to the Supreme Court is likely. However, a faster and safer outcome would be for Minnesota lawmakers to change the definition of tetrahydrocannabinol to exclude hemp. That should be done in any case.

Jesse Mondry is an attorney with Harris Bricken, and this article was originally published on the Canna Law Blog and republished with permission.