The complexities of cannabis

Gov. Tim Walz signed legislation June 2 that clarified the legal uses of hemp-derived edibles and drinks for adults, but the future of broader cannabis regulation in Minnesota remains muddled.

Unclear rules, which are not uninform across the state, inconsistent state and federal laws, and disparate enforcement are among the challenges facing the state.

Another layer of confusion is how cannabis use plays out in the employment sphere. The lack of technology to test workers who use cannabis leaves employers questioning how to ensure workplace safety and resolve workers’ compensation claims.

Medical cannabis was legalized in Minnesota in 2014. Since then, there has been a push to legalize recreational marijuana in the state. Legalization did not happen in Minnesota this year, despite some optimism that it would. On May 18, Senate Minority Leader Melisa López Franzen, DFL-Edina, moved to take up the adult-use cannabis bill, which had passed the House but had not yet been heard by the Senate. As expected, the Republican-controlled Senate voted against the motion, 33-31.

The waters became muddied when the federal 2018 Farm Bill was signed into law. The law removed hemp as being defined as cannabis and opened the door to businesses creating and selling hemp-derived products. One of the products is something called delta-8, which is commonly referred to as “weed light.” Molecularly similar to delta-9 (the cannabinoid that gets people high), delta-8 can have 50% to 75% of the potency and is completely legal.

Earlier this year, however, the Minnesota Board of Pharmacy expressed concerns that delta-8 was being sold with no regulations or standards in place to protect consumers. There was also a brewing legal question of whether delta-8 THC products were legal since they were indirectly derived from hemp through a synthetization process.

But on May 22, the Minnesota Legislature passed omnibus legislation containing clarification about hemp. The Legislature approved hemp-derived CBD in food and drinks. Five milligrams of hemp-derived THC per serving — 50 total milligrams per package — is also permitted. The bill explicitly allows delta-8 THC and delta-9 THC products.

The legislation also includes requirements to keep edibles out of the hands of children. The packaging must be child-proof and have a label that reads “Keep this product out of reach of children.” It also prohibits THC products from being designed to look like food brands that are primarily consumed by children or advertised to children. Copycat candy edibles—that is, edibles with packaging designed to look similar or indistinguishable from known brands of candies and treats—have been consumed by children, landing them in the hospital with vomiting and hallucinations.

These changes will go into effect on Aug. 1.

Jason Tarasek, an attorney who founded Minnesota Cannabis Law in 2018, says that the clarification offered by the Legislature resolves some ambiguity about what items are permitted in Minnesota. However, he maintains that, overall, things remain opaque: “While the federal government continues to disallow CBD in food and beverages, it is unlikely that the federal government would take enforcement action in Minnesota in light of our new law. Even though the federal and state laws related to these products remain a muddled mess, sellers and consumers in Minnesota can breathe a small sigh of relief.”

Although some clarification about CBD products has been offered, Tarasek is displeased by the lack of movement in the Minnesota Legislature regarding marijuana legalization and is skeptical that Minnesota will legalize recreational marijuana use anytime soon: “Minnesota Republicans have made it very clear that they have zero interest in legalizing adult-use marijuana,” Tarasek said. “It is ironic that our neighbors to the west — North Dakota and South Dakota — each are likely to legalize adult-use marijuana on the ballot in November.”

James Kuettner, a criminal defense attorney, is a member of NORML (National Organization for the Reform of Marijuana Laws). “The illegality of marijuana seems to find the folks who wouldn’t otherwise be involved in the criminal system at all,” Kuettner said. “Often, it’s a driver who has some in the car, college kids out for a party, professionals driving home from a purchase, or even a habitual user who has a marijuana pen (which is often a felony on a first offense) who find themselves facing charges.”

Kuettner, while slightly more optimistic than Tarasek about eventual legalization, maintains that there are large barriers in the way to that happening: “Probably the biggest issue—and biggest hurdle—to statewide legalization from the criminal system perspective is the authority it can grant law enforcement to search a motor vehicle. Upon detecting the odor of marijuana—raw or not—law enforcement will almost always be supported in a search of a car without a warrant.” He added, “That’s a strong incentive for those on the enforcement side to keep marijuana illegal because it opens the door (literally and figuratively) to look for so much more inside the car.”

However, Kuettner agrees that marijuana use can cause safety concerns, particularly in an employment context. “I’ll never personally advocate for driving while high, nor will I personally advocate for other occupations (pilot, medical doctors to a large extent, commercial drivers, etc.) to allow it,” he said. “It would be a bit easier to consider if there was a better way to test whether someone was under the influence of it than a blood test (which tells us almost nothing about current use and effects, only somewhat recent use).”

That last statement is a major source of frustration for employers, who are also trying to muddle through this.

Kathy Bray is vice president and chief legal officer of SFM, a workers’ compensation organization. Bray cites a 2020 CDC study which raised concerns about increased incidence of work accidents as a result of cannabis use. As she notes, “lack of reliable acute impairment testing for marijuana” means that it is unclear “whether studies are reflecting causative versus correlative results.” Bray suggests, “Decriminalization of marijuana would assist with opening the doors to more robust study to help answer some of these important questions.”

Cannabis can remain in the body for a long time, well beyond when someone may have used it. Employers, then, will need to rely on other evidence to see if cannabis use contributed to an accident.

“Other observations or evidence of impairment may be relevant if an injured worker is alleged to be intoxicated or impaired at the time of injury, since a test simply detecting presence of marijuana will not necessarily answer the question of impairment at the relevant time in question,” Bray said. “The burden of proof is on the employer to establish that intoxication was the proximate cause of injury. Training safety personnel and supervisors of safety-sensitive positions in particular is important.”

Absent advanced testing abilities, workers’ compensation claims arising out of incidents where cannabis was involved will remain complicated. One thing is clear, though: Even if cannabis is eventually legalized, it does not mean that employees can use without consequence.

“In Minnesota, whether a substance is legal or illegal, if an injured worker is intoxicated at the time of injury and that intoxication was the proximate cause of the injury, the employee may be barred from recovering workers’ compensation benefits,” Bray said.

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