Minnesota Cannabis Legalization Bill Amended to Lessen Potential Impact on Breweries Manufacturing THC Beverages

By Krissy Atterholt, Jason Tarasek

Mar 22, 2023

Minnesota’s adult-use cannabis legalization bill, House File 100 / Senate File 73 (“the Bill”), would dictate the current state of affairs for breweries and cideries. In the wake of 2022’s hemp-derived THC-product bill (Minn. Stat. § 151.72), microbreweries and cideries have become Minnesota market leaders in the manufacturing and sale of THC beverages. Until recently, the Bill was drafted so that most breweries and cideries would be effectively prohibited from manufacturing lower-potency hemp beverages at their brewing facilities. After much outcry from lower-potency hemp beverage manufacturers, the Bill was amended so that lower-potency hemp edibles manufacturers could produce lower-potency hemp edibles at the same facility where food (such as beer or cider) is manufactured.

Many of the other recent changes also relate to lower-potency hemp edible products. For example, SF 73 now provides for licenses for lower-potency hemp edible manufacturers and lower-potency hemp edible retailers. Lower-potency hemp edible manufacturer licenses would require an application fee of $250, an initial license fee of $1,000, and a renewal license fee of $1,000. Lower-potency hemp edible retailers would pay $250 to apply, $250 for the initial license, and $250 for the renewal license fee for each retail location. HF 100 was also recently amended to include these licenses but would provide for lower fees. Any remaining discrepancies between the bills following passages of the bill in their chambers will likely be resolved in a conference committee.

Edible Cannabis Products

“Edible cannabis product” is defined under the draft legalization statute as an adult-use cannabis product that does not include lower potency edible products. An edible cannabis product is any product that is:

  • Intended to be eaten or consumed as a beverage by humans;

  • Contains a cannabinoid, including an artificially derived cannabinoid;

  • In combination with food ingredients;

  • Not a drug; and

  • A type of product approved for sale by the office or substantially similar to a product approved by the office including but not limited to products that resemble nonalcoholic beverages, candy, and baked goods.

Edible Cannabinoid Products Containing Cannabinoids Derived from Hemp

Building upon 2022’s law, which created the legal market for THC beverages and gummies, SF 73 would maintain that edible cannabinoid products that contain cannabinoids derived from hemp cannot contain more than five milligrams of any tetrahydrocannabinol in a single serving or more than a total of 50 milligrams per package. Edible cannabinoid products are defined as 1) any product that is intended to be eaten or consumed as a beverage by humans, 2) contains a cannabinoid in combination with food ingredients, and 3) is not a drug. The Bill’s changes to Section 151.72 would:

  • Not allow for these products to be substantively similar to a meat food product, poultry food, or dairy products.

  • Not require child-resistant packaging for edible cannabinoid products that are intended to be consumed as a beverage and do not contain more than a total of .25 milligrams of THC (i.e., “lower potency edible products”); and

  • Allow edible cannabinoid products under this section to contain Delta-8 or Delta-9 that is extracted from hemp plants or artificially derived cannabinoids and prohibit these products from containing any other artificially derived cannabinoid or synthetic cannabinoid.

Lower Potency Edible Products

“Lower potency edible product,” is defined as a product that:

  • Is intended to be eaten or consumed as a beverage by humans;

  • Contains a cannabinoid, including artificially derived cannabinoids, in a combination with food ingredients;

  • Is not a drug;

  • Consists of servings that contain no more than 5 mg of D9 THC, 25 milligrams of CBD, 25 milligrams of CBG, or any combination of those cannabinoids that does not exceed the identified amounts;

  • Does not contain more than a combined total of 0.5 mg of all other cannabinoids;

  • Does not contain a cannabinoid derived from cannabis plants or cannabis flower; and

  • Is the type of product approved for sale by the office or is substantially similar to a product approved by the office, including but not limited to products that resemble nonalcoholic beverages, candy, and baked goods.

Minnesota HF100 Cannabinoid Products Cross-section

All in all, if the Bill passes as is, breweries and cideries looking to enter or stay in the THC beverage market will need to navigate the nuances of the Bill to manufacture and sell their THC beverages lawfully.

If you would like to discuss potential opportunities and legal implications associated with manufacturing THC beverages or edible cannabinoid products, the classification of such products, and what the Bill could mean for your operations, please contact Vicente LLP to schedule a consultation.

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