THC-infused products could get drivers in hot water |

A month after the Minnesota Legislature legalized products containing small amounts of Delta-9 THC, the psychoactive substance found in marijuana, local law enforcement say they have not yet seen a corresponding increase in THC-intoxicated driving.

As more local stores begin selling products infused with Delta-9 THC, it’s likely that local drivers will come into contact more and more with THC-infused products. But given the way the law is currently written, anyone planning to drive would be well advised to exercise caution before consuming these products.

“Just because the Legislature legalized those products doesn’t make it legal to drive impaired,” said Nicollet County Sheriff Dave Lange.

Lange expressed frustration that the law was enacted in a relatively bare-bones fashion. The new law’s approach stands in marked contrast to previous legislative efforts to legalize marijuana, which sought to provide a comprehensive tax and regulatory framework.

Quietly tucked into a hefty Health and Human Services omnibus bill, the measure legalizing the infusion of food and beverage products with small amounts of hemp-derived Delta-9 THC was billed, when discussed at all, as providing much needed regulatory clarity.

To be fair, the bill appears to have achieved additional regulatory clarity in some areas. In particular, keeping THC-infused products out of the hands of children was clearly a major focus for the bill’s chief author Rep. Heather Edelson, DFL-Edina.

While scientific research on the impact of cannabis is in general somewhat limited, there is clear evidence to suggest that concerns about the impact of marijuana getting into the hands of children is well founded.

According to the Centers for Disease Control and Prevention, research has indicated that marijuana use before the age of 18 may have long-lasting or even permanent effects on a child’s attention, memory and learning, resulting in poorer academic performance.

Thus, the lack of any age requirement for THC-infused products became a sore spot for lawmakers, especially when some sought to take advantage by marketing THC-infused products with packaging that often mimicked popular candies and other snack foods.

Such attempts to drawn in younger audiences will be severely restricted by the new law, which imposes significant packaging restrictions on products infused with THC and sets a hard age limit, barring anyone under the age of 21 from possessing or consuming THC products.

The bill didn’t specifically address driving while under the influence of THC. However, the way existing state law has been structured means that anything less than strict abstinence from THC-infused products could get Minnesota drivers in hot water.

Minnesota’s latest law is designed to address various issues, which have cropped up since Congress legalized the production and sale of hemp products containing small amounts of THC as part of the 2018 Farm Bill. Minnesota sought to mimic this law with its own hemp legalization bill in 2019 but failed to address key regulatory questions.

Both bills broadly opened up new markets, allowing for not only the production and sale of products with small amounts of Delta-9 THC but also products containing novel cannabinoids, such as Delta-8 and Delta-10, which were not subject to the same strict regulatory structure.

Efforts to provide a comprehensive regulatory fix for the 2019 law’s weaknesses gained new urgency late last year, as the result of the Minnesota Court of Appeals’s finding in Minnesota v Loveless, which was later upheld by the Minnesota Supreme Court.

In Minnesota vs Loveless, the Court ruled that while plant material in the defendant’s possession could be legal as long as it contained less than 0.3% of Delta-9 THC, liquid hemp products containing any Delta-9 whatsoever remained illegal due to a drafting error in the law.

Common food products containing infusions of THC were also under siege due to the Minnesota Department of Agriculture. According to the MDA’s interpretation of state law, it was actually illegal to infuse food with cannabinoids because they are not a FDA-approved additive.

That particularly irked many in the hemp industry, who saw it as putting Minnesota hemp manufacturers at a competitive disadvantage compared to other states. They successfully pushed for a new limit of up to 5 mg per serving and 50 mg per package.

While THC products may be legal to consume in Minnesota, unlike with alcohol, there is currently no “legal amount” of THC a person may have in their bloodstream when operating a vehicle.

Furthermore, THC products can stay in a person’s bloodstream for weeks following initial consumption. As a result, Minnesotans could test positive for THC intoxication and find themselves facing DWI charges, long after the psychoactive effects have worn off.

In order to enforce the new law, law enforcement will have the power to request a search warrant for a blood draw if they believe a driver may be intoxicated, or in the event of a serious or fatal crash. That blood test will detect the presence of even trace amounts of THC in the bloodstream, but it won’t clarify whether it came from an illegal or now-legal source.