The Legislature stumbles into legalizing THC, for better or worse | Column

In the final days of the legislative session in May, a bipartisan panel was negotiating the differences between health and human services bills passed by the DFL-led House and GOP-controlled Senate. 

They had hundreds of pages to get through, and a bevy of amendments to approve, including one “exempting cannabinoids derived from hemp from Schedule 1 of the controlled substances schedule.” 

Not in so many words: Legalizing weed. 

After the amendment passed on a unanimous voice vote, here’s state Sen. Jim Abeler, R-Anoka: “That doesn’t legalize marijuana — we didn’t just do that.” 

He chuckled. 

His DFL co-chair, Rep. Tina Liebling of Rochester replied, “Oh, are you kidding? Of course you have. No, just kidding. We’ll do that next, OK?” 

Well, actually, they did it. 

As of Friday, July 1, 2022, products with THC — the chemical that gets you high — from “legally certified hemp” can now be manufactured, distributed and sold in Minnesota, in 5-mg increment edibles and drinks. 

That’s enough to amp up an episode of “South Park” or deepen the groove at a Khruangbin concert.

If that exchange in the waning days of the session doesn’t sound like the most thoughtful legislating, you might be onto something. 

I asked one of the bill’s chief architects, Rep. Heather Edelson, DFL-Edina, who would regulate this newly legal intoxicant. First she said it would be the state Department of Agriculture. She corrected herself in a text and said it would be the Board of Pharmacy. 

Jill Phillips, the new executive director of the Board of Pharmacy, has been gifted with this new dung sandwich of responsibility, which is nothing like their current mission.

“We’re set up to regulate licensees,” she told me. Meaning: licensed pharmacists and pharmacies. 

But the new THC law doesn’t even require a license to manufacture, distribute or sell the THC edibles and drinks. 

“It’s a new kind of work we’re not necessarily ready for,” Phillips said. 

The Board of Pharmacy employs just 23 people, and they have their hands full, what with dangerous legal opioids and everything else. Now they’ll be tasked with regulating the potency, packaging and age requirements (21+) of the new THC products, which can be sold almost anywhere. 

(Movie theaters? Please?)

Buyer beware: The Board of Pharmacy doesn’t have a lab to test the potency or safety of the products, nor does it have a contract with a lab. 

Manufacturers are required to contract with a lab and keep records, but they don’t have to send them to the Board of Pharmacy, except upon request, Phillips told me. 

If you were hoping we’d get some tax revenue to pay for the expensive regulatory regime and maybe public education about misuse and treatment for addicts: sorry. 

There’s no tax provision in the bill.*

I sympathize with Edelson, a veteran public health champion who was trying to work with the Board of Pharmacy and the Department of Agriculture to clean up a gray market in something called delta-8. 

The Food and Drug Administration describes delta-8 as “a psychoactive substance … typically manufactured from hemp-derived cannabidiol (CBD).” 

Hemp and CBD are legal in Minnesota, which allowed people to formulate delta-8 from them, and they started selling it everywhere because there was no legal standard around it. 

I started seeing it in tobacco shops and dodgier gas stations. It gave me real bath salts vibes. 

“It was super different depending on where you got it,” a friend who tried delta-8 told me. “Some kinds were kind of like cheap weed, some kinds were super terrible and anxiety and paranoia provoking.” 

So I was never tempted to try it, especially since nearly half the country has legal and regulated THC markets with the decent assurance of quality control. 

Edelson told me the delta-8 market is out of control — they have been targeting kids, making the products look like candy, even selling high-potency breakfast cereals. Calls to poison control centers were rapidly rising. 

So, with the help of state Sen. Mark Koran, R-North Branch, she pushed to regulate delta-8, but used the broader language of cannabinoids, which includes delta-9. 

Which is the kind you’d buy in Colorado or some other legal state.  

Presto: Legal weed! 

There are some regulations, like childproof packaging and bans on marketing to kids, and you have to be 21 to purchase.

We traded unregulated delta-8 for a lightly regulated delta-8 and delta-9. 

“That’s accurate,” said Jason Tarasek, who has been lobbying on the issue for several years.

And, even more remarkable, Senate Republicans — for years the major hurdle to legalization — were apparently in the dark. 

“I thought it was more of a technical fix to the delta-8 problem, and it had a broader effect than I expected,” Abeler told me. 

Asked by the Star Tribune about this major change in law and policy, Senate Majority Leader Jeremy Miller, R-Winona, declined to comment. (Kudos to reporter Ryan Faircloth for his work on this story.) 

You have to admire the legalizers’ legislative cunning.

But I have mixed feelings. 

Yes, prohibition has failed. Marijuana is commonly used by Minnesotans from all walks of life, needlessly turning them into law breakers, while too often the law has been used to profile Black people and shove them into the brutal churn of the criminal justice system.  

And, THC is safer than alcohol, at least if you’re counting fatalities. It’s not even close, with 95,000 Americans killed annually from alcohol-related causes. Whereas you can definitely smoke or ingest too much THC (ask Maureen Dowd!), there’s really no such a thing as a marijuana overdose per se.

The best approach is to legalize, regulate and tax, using the revenue to mitigate the negative effects. 

The Minnesota House passed a bipartisan version of legalization last year, but it died in the Senate. That bill included a strict regulatory regime with a public health focus. It would have helped us avoid the Wild West outcomes we’ve seen in other states by engaging in typically paternalistic, rigorous Minnesota oversight we pride ourselves on. 

(I’m pretty sure you can’t even buy a drink here after midnight without written permission from your mother.)

My fear is that this light regulatory structure will lead to gross excesses. And then we’ll see a bunch of alarmist media coverage — you can just picture the TV news stories — right before the November election, about some dunderhead who left an open package of edibles on a counter, and a kid ate the whole thing and thought he was Spiderman and wound up in the emergency room. 

And then there’ll be a backlash, and we’ll go back to prohibition. 

Edelson acknowledged to me that the law needs fixes next session, including the creation of an agency specifically dedicated to oversight of cannabis.

Surely licensing ought to be strongly considered. 

In the end, though, she has no regrets.

“We passed a significant increase in consumer protection,” she said. 

I just hope if it says gluten free, it’s really gluten free. 

*A previous version of this column incorrectly characterized the new THC products’ tax status. It’s been corrected.