A Minnesota medical marijuana company is suing the state in an attempt to secure the right to sell THC edibles to any adult over 21, just like other businesses are able to do under a recently enacted hemp law. The medical cannabis company argues that the current policy amounts to an unconstitutional double standard.
Vireo Health, which is one of two medical marijuana companies authorized to sell cannabis to registered patients in the state, filed the lawsuit against several Minnesota agencies in a state circuit court late last week.
The legal complaint centers on a unique law that was enacted over the summer that allows hemp businesses to legally market certain cannabis products—including foods and beverages infused with THC, CBD and other cannabinoids.
While those businesses are able to market the cannabinoid-infused edibles to adults 21 and older within a limited regulatory environment, Vireo said that it’s currently prohibited from doing so at dispensaries, where the company’s “operations and sales are heavily regulated and must comply with stringent testing, reporting, security, and eligibility requirements.”
“There is no rational basis to create separate legal requirements for sellers of medical cannabis-derived edibles, like Vireo, and sellers of hemp-derived edibles,” it said. “Medical cannabis and hemp are the same plant species. THC from medical cannabis is the same as THC from hemp. But, without any rational basis, Minnesota law treats medical cannabis-derived edibles very differently from identical hemp-derived edibles.”
“The irrational discrimination against Vireo violates the Minnesota constitution. To remedy this unconstitutional discrimination, Vireo seeks a declaratory judgment expressly allowing Vireo to sell and distribute medical cannabis-derived edibles, just as hemp-derived edibles may now be sold and distributed, and striking down any Minnesota laws that prohibit Vireo from making such sales.”
The company said that the problem isn’t exactly about conflicting statutes on THC. Rather, it’s that “hemp-derived edibles that have recently been legalized in Minnesota do not have the same regulation, oversight, testing, and customer eligibility limitations as the medical cannabis-derived edibles sold by Vireo.”
“There are simply not enough regulatory or law enforcement resources available to ensure that hemp-based edibles being sold in Minnesota are legal and safe,” it said, adding that the issue could be partially resolved by giving Vireo that ability to market edibles with THC derived from marijuana that contain the same allowable cannabinoid contents.
“If other companies can sell hemp-derived edibles to anyone over the age of 21, then Vireo should be allowed to compete with them by selling its chemically identical products,” it said. “There is no rational basis to limit consumer choice and restrain Vireo’s business when Vireo’s medical cannabis-derived edibles are identical to hemp-derived edibles that have the same type, quantity and concentration of THC.”
The lawsuit names multiple defendants, including representatives of the state Health Department, Office of Medical Cannabis and Attorney General Keith Ellison, along with county prosecutors who the company wants to block from pursuing any criminal actions against it.
Marijuana Moment reached out to Vireo for comment, but a representative was not immediately available.
In the filing, Vireo said that it “cannot avoid this irrational distinction by selling hemp-derived edibles,” in part because it is “not in the business of manufacturing or selling hemp-derived edibles.”
“Vireo does not own or operate any hemp fields, which require more acreage than medical cannabis. Vireo does not have a process for extracting cannabinoids, including THC, from hemp,” it said. “Vireo’s grow facilities, manufacturing processes, and operations are tailored to medical cannabis, not hemp. Vireo would have to drastically change its business model to incorporate hemp and hemp-derived edibles.”
The law enacted this year makes it so that all hemp-derived cannabinoids including THC and CBD can be legally sold in food items, beverages, topicals and more—as long as the products contain less than the federal limit of 0.3 percent THC. Edible and beverage products must be limited to a total of 5 mg THC per serving and 50 mg per package.
The THC limit applies to all forms of the psychoactive compounds, including the most widely known compound delta-9 THC, as well as other increasingly popular derivatives like delta-8 that exist in an especially grey regulatory area in many state markets.
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To some advocates, the Vireo lawsuit speaks to the broader need to legalize marijuana for adult use, which is something Democratic lawmakers have endeavored to accomplish in recent legislative sessions without success.
You heard it here first, friends.
Their argument? "Vireo's medical cannabis-derived edibles are identical to hemp-derived edibles" [spoiler: the next thing it says isn’t "except that we make ours using cannabis plants with 600% more THC in them than hemp."] pic.twitter.com/XtA5BlESBw
— Blunt Strategies (@BluntStrategies) September 16, 2022
A survey conducted by officials with the the House of Representatives that was released this month found that 61 percent of Minnesotans back legalizing cannabis for recreational use.
In an interview conducted at the State Fair late last month, the Republican gubernatorial nominee, former state Sen. Scott Jensen, told The Star Tribune that he thinks the state should consider decriminalizing “trivial amounts” of marijuana and expunging prior records, and he wants broader cannabis legalization to be decided by voters at the ballot.
Jensen declined to say whether he would work to revise the state’s unique THC edibles policy, stating that officials should assess the efficacy of the program after six months to see if changes should be made.
“I think we have a little bit of mud on the wall and we’re going to have to sort it out and see what sticks,” he said.
Gov. Tim Walz (D), meanwhile, has pushed for legalizing marijuana in a regulated market, including funding for implementation in his budget proposal this year, for example.
But the despite a comprehensive reform bill from House Majority Leader Ryan Winkler (D) advancing through 12 committees before passing on the House floor last year, legalization stalled in the GOP-controlled Senate and was not ultimately enacted. An earlier bipartisan legalization proposal led by Jensen and Sen. Melisa López Franzen (D) in 2019 also did not advance.
Back in January, Winkler and López Franzen discussed their plans to advance the cannabis reform this session.
Winkler said at the time that his bill was the “product of hundreds of hours of work involving thousands of people’s input, countless hearings and public listening sessions.”
Separately, certain Democrats including staff for Winkler have found themselves caught up in a controversy over an alleged (and ultimately unsuccessful) attempt to change the name of a third party focused on marijuana that some have seen as undercutting Democratic support on the ballot in past cycles to one instead meant to appeal to far-right conservatives in an apparent attempt to siphon votes away from Republicans in the upcoming election.
Previously, in 2019, the governor directed state agencies to prepare to implement reform in anticipation of legalization eventually passing.
While legalization wasn’t ultimately enacted following the House’s passage of the bill last year, the governor did sign a bill to expand the state’s medical marijuana program, in part by allowing patients to access smokable cannabis products.
The House majority leader said in 2020 that if Senate Republicans don’t go along with the policy change legislatively, he hopes they will at least let voters decide on cannabis as a 2022 ballot measure, but that didn’t materialize.
Read the lawsuit over Minnesota’s THC edibles law below:
Photo courtesy of Brendan Cleak.