FAQs Regarding Minnesota’s New THC Edibles Law

Confused about the new Minnesota Edibles law? So are we. (Joking, kind of).  Provided below are some frequently asked questions (“FAQs”) about the new statute.

Background

In January 2020, Minnesota legalized “industrial hemp” and CBD products, provided they contained less than 0.3% of delta-9 tetrahydrocannabinol (or “THC”).  Because the Minnesota statute expressly referenced “delta-9,” it was unclear whether the legal threshold applied to other THC analogs, such as delta-8 and delta-10.

Effective July 1, 2022, Minnesota amended its law to apply the 0.3% THC limit to all forms of hemp-derived THC. In addition, the new Minnesota law authorized the production of “edible cannabinoid products,” provided that the products meet the following requirements: (1) they do not contain more than 0.3% of any hemp-derived THC and (2) they do not contain more than 5 mg of THC per serving or more than 50 mg of THC per package.

FAQ:  What’s this new law all about?

A:  Effective July 1, 2022, Minnesota enacted a law which allows small amounts of hemp-derived THC (either delta 8 or delta 9) products in food and beverages. How much THC?  No more than 0.3% of any hemp-derived THC and the product may not contain more than 5 mg of THC per serving or 50 mg per package.

FAQ:  Does this law make recreational marijuana usage legal?

A:  No, it does not. This law permits the use of THC that is derived from hemp, not the marijuana plant.

FAQ:  Does this new law allow products to be sold that make the purchaser (including employees) “high”?

A:  Yes, probably. According to “Nothing But Hemp,” consuming “an edible with 5 mg of THC is generally enough to notice mild to moderate effects.” Notably, the law does not limit the number of 5 mg edibles that can be consumed, so presumably someone who consumes multiple edibles will become “high.”

FAQ:  Can ingestion of food or beverages containing hemp-derived THC product cause a positive on a drug screen?

A:  Yes, they possibly might.

FAQ:  Why can’t you give a straight answer?

A:  Whether an individual who ingests the products Minnesota just made lawful could test positive will depend on a number of factors, including: (a) the dose of THC in the product consumed, (b) the frequency with which the individual is consuming products containing THC, and (c) the type of drug test performed and its sensitivity levels.

Under the new law, employees can consume “edibles” that contain as much as 0.3% of THC in packages with as much as 50 mg of THC per package.  In addition, there is no limit on the number of packages that can be sold to an individual consumer.  Thus, it is certainly possible that consumption of “edible cannabinoid products” by an employee could produce a positive test result, especially if the individual was consuming the product regularly or consuming more than the intended serving.

FAQ:  Can a drug screen tell the difference between illegal drug use (smoking or ingesting non-medical marijuana, which is illegal in Minnesota and under federal law) and the use of the products that are lawful under Minnesota law, including edibles under the statute or even medical marijuana?

A:  At this time, it does not appear that most regular drug screens (an immunoassay test, saliva or hair test) can tell the difference between lawful use and unlawful use.

FAQ:  We have a drug and alcohol testing policy for applicants and reasonable suspicion training for our employees. What should we be doing?

A:   You should review your drug and alcohol testing policy and your policy statement to ensure it’s up to date.  Consider the following:

• • Have you addressed the Minnesota Medical Marijuana statute in your current policy? If not, you need to. Make sure that you’ve carved out the off-duty use of medical marijuana and make it clear that employees who are authorized to use and possess medical marijuana, are still prohibited from using medical marijuana at the work site or during work hours, possessing medical marijuana at the work site or during work hours, or being impaired by medical marijuana while at work.
  • Look at your definition of “illegal drugs” and “under the influence” to see if your policy covers the use of intoxicating lawful drugs such as the “edible cannabinoid products” permitted by the new Minnesota statute. As an employer, you are permitted to prohibit employees from use of, possession of, or being under the influence at work of any product – lawful or unlawful — which may impair an employee’s ability to work. Being under the influence at work could include being under the influence of “edible cannabinoid products.”
  • For employees who are truck drivers subject to the DOT’s and FMCSA’s regulations, Minnesota’s new law does not excuse those employees from their obligation to comply with FMCSA’s drug testing regulations which continue to screen for any type of marijuana and THC.

FAQ:  What do I do if one of my employees tests positive test for THC and claims it’s because of the edibles available under the new law?

A:  For now, we are taking the position that a positive test for THC is a positive test for THC regardless of how the employee came to test positive. Minnesota employers subject to DATWA do not have to specifically address the level at which an applicant or employee is considered to have a positive test. Therefore, let your MRO or the lab tell you whether the employee is positive. As Minnesota employers know, every employee who has a confirmatory positive must be given a chance to explain the positive. An employee may try to explain that the positive test resulted from lawful use of “edible cannabinoid products” under this new Minnesota law – not marijuana. If so, it is important to have the MRO evaluate the situation on a case-by-case basis and the employee can request a confirmatory test (at their own expense) which may be able to differentiate between the type of THC in their system.

FAQ:  Can an employer terminate an employee who tests positive on a drug screen as a result of lawful off-duty consumption of edibles?

A:  Not immediately. Under Minnesota DATWA, any employee who tests positive for the first time is given an opportunity for a chemical dependency assessment, and if it is recommended, to go participate in a drug counseling or rehabilitation program. DATWA does not permit termination of an employee if they agree to the assessment and treatment, if recommended. If the employee refuses or fails to participate in the assessment or program, they can be terminated. An employee who receives a second positive drug test may be terminated.

FAQ:  You didn’t understand the question, can an employer terminate an employee who tests positive following off-duty use of edibles? Doesn’t Minnesota have a Lawful Consumable Products statute which allows an employee to engage in “the use or enjoyment of lawful consumable products (including alcohol or tobacco), if the use or enjoyment takes place off the premises of the employer during nonworking hours?” 

A:  Good question. Another court looking at this issue concluded that an employer may terminate for off-duty use of THC because even though the use of the THC was authorized by state law, it was not authorized by federal law. However, this decision becomes more complicated because the 2018 Federal Farm Bill legalized hemp-derived THC, so presumably use of that form of THC is legal under both federal and now Minnesota law.  However, in 2021, the Minnesota legislature attempted to amend the Lawful Consumable Products statute to reference cannabis, but the bill did not pass. This fact alone might give an employer a good argument that THC edibles are not included in the Lawful Consumable Products statute. At this point, it will likely be a question for the courts.

Bottom Line

As you can see, there still are many unanswered questions regarding Minnesota’s new law authorizing “edible cannabinoid products.”  We will continue to monitor this issue as it unfolds.