Legalities of CBD, Delta-8, and Other Hemp & Cannabis Products: 2018 Federal Farm Bill

Recently, you likely noticed an inundation of new hemp products. There are hemp lotions, hemp teas, hemp fabrics, hemp straws, and hemp disposable utensils. And, even hemp seeds in food products! Scientists can more freely study the medical benefits and side effects of cannabis. New uses for cannabis and its derivatives are being developed daily. A mainstream hemp product we all hear about is CBD (cannabidiol) – in its various forms such as gummy candies, vaporizer cartridges, lozenges, and even supplements for pets.

In the United States, “Marijuana” is the popularized term for the cannabis plant. Although most people think of marijuana/cannabis as a drug used recreationally for its euphoric effects, historically cannabis has been used throughout the world to make a variety of products such as rope, paper, and medicine. There are only a couple known chemical compounds in the cannabis plant that actually get you “high.” Traditionally, it was understood that Delta-9-tetrahydrocannabinol, otherwise known as Delta-9 THC or simply THC, is the chemical compound in cannabis that gets you high.

A lessor known derivative of the cannabis plant, but increasing in popularity, is Delta-8 tetrahydrocannabinol, or Delta-8 THC. Delta-8 is used for a variety of things. Some find it has a euphoric effect, although generally believed less powerful than that of Delta-9. Delta-8 is sold legally throughout Minnesota and the United States in many of the same forms as CBD and in the same stores that sell CBD products.

Cannabis was grown in the United States for a variety of industrial uses until 1970. When, through the passing of the Controlled Substance Act, Congress classified marijuana/cannabis as a Schedule I controlled substance and made it illegal to grow or possess any portion of the plant and its derivatives for any purpose. Then in 2018, the Federal Government again legalized “Hemp” products through the passing of the Farm Bill. Soon after, Minnesota reformed its laws to reflect federal law. Now, in Minnesota and Federally “Hemp” is not considered “Marijuana.”

What Exactly is Hemp?

In the 2018 Farm Bill, “Marihuana” was redefined and tetrahydrocannabinols in “Hemp” were excluded from the Controlled Substance Act. Now, “Hemp” is defined as, “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all 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.” Minnesota Law uses identical language. Simply put, under Minnesota and Federal law, the cannabis plant and any of its derivatives are legal if the Delta-9 THC concentration is 0.3 percent or less.

With the passing of the 2018 Farm Bill, the Federal Government made the entire cannabis plant and its derivatives legal – with one exception – Delta-9 THC. Under the Controlled Substance Act, “Marihuana” (traditional English spelling until the 1930s when Congress started a propaganda campaign to make it seem more “Mexican” – but that is another topic) and Tetrahydrocannabinols are Schedule I controlled substances.

The Problem

Cannabis products and the legality of the products are fluctuating and often law enforcement officers and prosecutors are not up to date on the issues. They see “THC” on the labels and go into autopilot. To make matters worse, Delta-9 in any form other than the actual plant material (e.g. edibles, vape cartridges, etc.) is classified as a “marijuana mixture” in Minnesota and possession is a felony. The real kicker, the field tests law enforcement officers use, known as “NIK Kits,” will show a positive test for “Marijuana/THC” even when the substance only contains legal Delta-8 and no illegal Delta-9.

As if this wasn’t confusing enough, sometimes people purchase THC products (dabs, vape cartridges, distillate, etc.) on the “Black Market” without even knowing they are buying Delta-8.  This is because a legal Delta-8 product can be bought at a retail store for $20 and resold as illegal Delta-9 THC for $50 “on the street” without the purchaser’s knowledge.

Ambrose Law Firm is well versed in cannabis laws and have helped many clients charged with controlled substance violations. If you legally purchase a cannabis product, keep the packaging with you. If you are stopped by law enforcement, never consent to a search of your person or property.  If the police search anyway and find a legal cannabis product, inform the officer that it is a legal form of hemp. DO NOT tell them anything else. Do not answer any other question, including where you purchased it. Do not argue the legality with the officer, it won’t help. Then, call Ambrose law Firm. We are here to help.

*Please note – Products containing more than 0.3% Delta-9 THC that were purchased legally in another state, are still illegal to possess in Minnesota.

Adam Kujawa is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him a Rising Star for the past two years. He is also an adjunct professor at the University of St. Thomas Law School Law School. Criminal Defense Lawyer Woodbury MN; Drug Crimes Lawyer Minnesota; and Criminal Defense Attorney Minnesota.

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