'The enforcement is almost nonexistent': Without state funds, Minnesota THC market hard to monitor

Newly legal low-dose THC edibles are increasingly easy to find at smoke shops and hemp stores around the metro.

But intermingled with the legal products on many store shelves are highly potent delta-8 vapes, gummies and flower — prohibited under state law.

Minnesota retailers have little incentive to quit selling non-compliant products given the lack of a licensing structure and dedicated funding to enforce the state's peculiar legal THC market.

"The enforcement is almost non-existent," Jason Tarasek with Minnesota Cannabis Law said at a conference last week. "We need a seed-to-sale tracking system. We need licensing. We need to do this so that consumers are protected."

Since July 1, edibles with up to 50 milligrams per package and drinks with up to 5 milligrams of hemp-derived THC per serving are legal in Minnesota for those 21 and older.

Most states that have legalized recreational marijuana took a year or longer to finalize rules and prepare an agency to oversee the industry. Minnesota had only about a month between the hemp bill's passage and its implementation.

State law enforcement agencies are still trying to understand the scope of the new law and learn how to monitor the products, said Jeff Potts, executive director of the Minnesota Chiefs of Police Association.

"I don't think any of the law enforcement associations were consulted with, or really made aware of, this legislation," Potts said.

The Legislature assigned the Minnesota Board of Pharmacy to regulate THC in the state. This summer, the board issued guidance as it considers long-term rulemaking, which could take a year or longer.

As for enforcement, the board relies solely on filed complaints and partnerships with law enforcement and other agencies.

"Complaints received by the board may be investigated by a board inspector, or we may coordinate and conduct joint investigations of complaints that involve more than one agency, including law enforcement," the agency's executive director, Jill Phillips, said in an email.

The agency issued a checklist for law enforcement to ensure retailers are checking IDs and products are in child-proof packaging that are clearly marked with warnings and provide information about sourcing and testing.

Since the new law went into effect, the board has received six formal complaints. All are still under review and not yet public.

During visits to five metro retailers, Star Tribune reporters found numerous violations.

One smoke shop was selling a variety of edibles with the right dosage, packaging and labeling, but it had several non-compliant products as well. Another smoke shop's inventory was nearly all illegal: vapes, gummies and hemp flower with high doses of delta-8 THC.

At a store that focuses on CBD products, some legal THC edibles had the right dosage but were missing required labels, such as "keep out of reach of children" warnings and manufacturing/testing information.

A vape shop sold gummies with 10 milligrams of THC per serving — twice the legal dose — as well as cookies infused with 500 milligrams of delta-8 THC.

"There are tons of non-compliant products still out in the field," said Steven Brown, owner of Nothing But Hemp and president of the Minnesota Cannabis Association. Many smoke shops are still selling non-compliant products and some are not even aware the law changed, he added.

The Board of Pharmacy would like a state cannabis office with dedicated staff and expertise to monitor and regulate the products, which the cannabis industry in Minnesota is asking for as well.

"The board supports and has supported the creation of a Cannabis Management Office to oversee all aspects of the manufacturing and sale of cannabis products as allowed by law, as many other states have chosen to do," Phillips said.

Other states with legal THC markets also have an excise tax on cannabis products to pay for enforcement and other programs; in Illinois, that ranges from 10% to 25%, and in Michigan it is 10%.

There is no excise tax on hemp-derived THC in Minnesota, nor did the Legislature approve any money for its regulation. That helped the measure stealthily pass despite Republican opposition to legal marijuana.

"We remain hopeful that the establishment of this new office and proper funding for this initiative will occur in the next legislation session," Phillips said.

Emerging concerns

Minnesota's THC law was meant to rein in the unregulated hemp-derived THC market, which exploded after the 2018 federal farm bill effectively legalized hemp and its derivatives. Hemp-sourced THC was being sold in a legal gray area at retailers around the state and online for several years before the Legislature took action.

But while the new law put restrictions on the industry, it also created a number of unintended consequences.

State law enforcement agencies have concerns about the new products, such as how officers will distinguish the newly legal THC edibles from non-compliant out-of-state cannabis products, Potts said.

Testing remains an issue, too, since officers cannot immediately determine if the potency of THC gummies matches the dosage listed on their packaging, he said.

"What if someone bought gummies at a convenience store in Minnesota … and then used that container to possess gummies from another state?" Potts said, voicing another law enforcement concern.

The Minnesota Chiefs of Police Association is hoping the state Department of Public Safety will issue guidance for law enforcement. In the meantime, officers will have to navigate a patchwork of municipal policies, as some cities are regulating the products via ordinance while others are adopting moratoriums on sales.

Kandiyohi County Sheriff Eric Holien said he's encouraging cities in his county to temporarily regulate who can sell the products until the state does so broadly. Already, he said, there have been instances of vendors selling the products at pop-up stands.

"Where's the product coming from? Who's manufacturing it? What is the standard and controls?" he said.

State Rep. Heather Edelson, an Edina Democrat who wrote the THC edible bill, acknowledged it's difficult to track where the products are being sold. She will seek to add a licensing framework to the new law during next year's legislative session, but in the meantime, she said cities will have to help with enforcement.

"Once things are licensed and we know who are selling it, I think enforcement will be significantly easier," Edelson said.

Holien also raised concerns about impaired driving. In July, an 18-year-old driver who crashed his pickup truck into another vehicle north of Willmar, killing its motorist, admitted to getting drunk and eating THC gummies beforehand.

Some law enforcement agencies have a limited number of drug recognition experts who can identify which drug impaired a person's driving, Holien said.

"It is kind of problematic for us when it comes to the enforcement side of things," he said.