The use of hemp in food products has continued to increase in popularity. The information below is to provide background on the variety of hemp products and clarify what is and what is not legal in Minnesota.
Hemp, also known as industrial hemp, is the plant species Cannabis staiva L that is bred to have a low concentration (less than 0.3% by dry weight) of delta-9 tetrahydrocannabinol (THC), the main psychoactive component of the cannabis plant. Hemp is not a "relative" of marijuana. Rather, the terms "hemp" and "marijuana" are legal definitions for the same genus and species of plants. The only difference between the two is the concentration of THC in the plant.
Many products can come from the hemp plant. Hemp seeds can be harvested from the plant, pressed into hemp seed oil, or ground into hemp seed protein powder. Fiber can be made from the hemp stalk, which can be used in materials like textiles, clothing, or insulation. Additionally, a variety of plant extracts can come from the flower of the hemp plant, including cannabinoids like cannabidiol (CBD) and a variety of terpenes (aromatic compounds).
Yes, growing and transporting hemp is legal in Minnesota. However, the Food and Drug Administration (FDA) has stated that adding certain hemp extracts to foods, including CBD, is prohibited. The 2018 Federal Farm Bill removed hemp from the Controlled Substances Act, separating it from marijuana. Hemp is now a recognized agricultural crop across the United States, which allows for the interstate transport of the seed, plants, and processed hemp products.
Delta-9 tetrahydrocannabinol, or THC, is a cannabinoid and the main psychoactive component of cannabis plants - the compound from the plant that causes a "high". Cannabis containing psychoactive levels of THC is commonly called marijuana. THC is a controlled substance and cannot exist in the plant or any hemp product above 0.03% on a dry weight basis in Minnesota. THC is illegal in Minnesota, except for approved medical use. Medical marijuana or medical cannabis is regulated by the Minnesota Department of Health (MDH). More information can be found on the MDH Medical Cannabis website.
Delta-8 Tetrahydrocannabinol (delta-8 THC) is a psychoactive substance found in the Cannabis sativa plant. Delta-8 THC is different than delta-9 THC, which is illegal in Minnesota, but delta-8 THC also causes psychoactive or intoxicating effects (a "high"). It is one of the over 100 cannabinoids produced naturally by the cannabis plant, but it is not naturally found in significant amounts. Unsafe household chemicals may be used in the manufacture of delta-8 THC products to convert CBD into synthetic delta-8 THC, resulting in potentially harmful by-products.
Delta-8 THC products have not been evaluated or approved by the FDA for safe use and may be marketed in ways that put public health at risk. While delta-8 THC is not illegal to sell in Minnesota, the health effects have not yet been researched extensively and are not well-understood. Delta-8 THC has been marketed as "diet weed" or "weed light". Packaging and labeling of these products may appeal to children (gummies, chocolates, candies, etc.) and are available for purchase at a variety of retailers and online marketplaces where there may not be age limits for who can purchase the products. Products containing delta-8 THC should especially be kept out of reach of children and pets.
The FDA and CDC have taken the initiative to provide consumers with more information about delta-8 THC due to the concerns mentioned above and an uptick in adverse event reports. Between January of 2018 and July of 2021, poison control centers nationwide have received 661 reported exposure cases, with 18% requiring hospitalization. Of the reports, 39% were pediatric patients (less than 18 years of age).
While there is no legal definition of "cannabinoid" in federal or state law, for the purposes of this document, cannabinoid refers to any of the phytocannabinoids produced by the hemp plant. "Phyto" means that the cannabinoid is naturally occurring in the plant (versus synthetic cannabinoids). Phytocannabinoids can be extracted from plan tissues and formulated into products if they meet the criteria specified in Minnesota Statute. The most common cannabinoids currently being processed from hemp in Minnesota are cannabidiol (CBD), cannabigerol (CBG), and cannabinol (CBN); however, there are over 100 cannabinoids produced by the cannabis plant.
While some hemp extracts and cannabinoids are legal in Minnesota (like CBD), it is not legal to add them to food products or dietary supplements. Food and drink manufacturers cannot add cannabinoids to their products in Minnesota, and food products containing cannabinoids (even made outside of the state) cannot be sold in Minnesota. It is also illegal to sell a cannabinoid product alongside a food item for the consumer to add themselves. This practice has been has been identified in the past at bars or coffee shops and is not allowed in Minnesota. The only hemp products allowed in food in Minnesota come from the seed of the hemp plant (hulled hemp seeds, hemp seed protein powder, or hemp seed oil).
Over the past decade, there has been growing interest in the development of therapies and other consumer products derived from hemp extracts. Minnesota regulatory agencies are committed to protecting the health of the public while also taking steps to improve the efficiency of regulations for the lawful marketing of appropriate cannabis and cannabis-derived products.
Misleading and false claims associated with hemp extract products may lead consumers to put off getting important medical care, such as a proper diagnosis, treatment, and supportive care. For that reason, it is important to talk to your doctor about the best way to treat diseases or conditions with existing, approved treatment options.
Unlike drug products approved by the FDA, unapproved cannabis extracts have not been subject to FDA review, and there has been no evaluation regarding whether they are safe and effective to treat a particular disease, what the proper dosage is, how they could interact with other drugs or foods, or whether they have dangerous side effects or other safety concerns.
The FDA is working to answer questions about the science, safety, and quality of products containing cannabis and cannabis-derived compounds. More information can be found in their document "What You Need to Know (And What We're Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD".
“Food” includes all products that are intended for consumption or used as an ingredient in a product intended for consumption. This includes candy/gummies, chewing gum, dietary supplements, and beverages, including alcoholic beverages (e.g. wine, beer, distilled spirits). Medications, like over-the-counter drugs or prescription drugs, are not defined as food. Further detail on the definition of “food” in Minnesota can be found in Minnesota Statute and Minnesota Administrative Rule .
Hemp products allowed in food may change as federal or state laws change. Minnesota currently follows federal regulations for the manufacture and sale of hemp products. Currently, three hemp products are designated as Generally Recognized as Safe (GRAS) – they are (1) hulled hemp seeds, (2) hemp seed protein powder, and (3) hemp seed oil. These three products, which are all from the seed of the hemp plant, contain only trace amounts of extracts like THC and CBD and have been evaluated by the FDA. These three products can be sold as food or added as ingredients to foods and sold in Minnesota.
Hemp ingredients that come from hemp plant parts other than the seeds are not allowed as food ingredients. This includes the flower of the hemp plant. These non-seed ingredients are not allowed regardless of whether they are added to the food item by a manufacturer, retailer, or by the consumer. Illegal ingredients may be labeled or named as hemp extract, full spectrum CBD oil, PCR extracts, or CBD oil. Hemp products not allowed in food may change as federal or state laws change.
First, all food additives must be tested for potential harmful effects on human health before they can be used as ingredients in food. This includes the different components of the hemp plant. An FDA evaluation was completed for the seed of the hemp plant, and those ingredients have been identified as Generally Recognized as Safe (GRAS) ingredients. The Alcohol and Tobacco Tax and Trade Bureau (TTB) also consults with FDA for all ingredients used in the manufacture of alcoholic beverages.
Second, parts of the Cannabis sativa plant are considered drugs and are controlled under the Drug Enforcement Administration (DEA) Controlled Substances Act (CSA). Nationally, FDA regulations establish the legal basis for the sale or use of food and drug products. Under FDA law, a product or ingredient cannot be both a food and a drug. Minnesota adopts federal law, where other states may have their own laws regarding the sale of cannabis.
The FDA is working to answer questions about the science, safety, and quality of products containing cannabis and cannabis-derived compounds. More information can be found in their document “What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD.”
FDA is responsible for evaluating products to determine if they are safe for human consumption. Since Minnesota adopts federal regulations and associated statements and guidance documents regarding wholesale food production and distribution, the federal regulations apply in Minnesota as well. Minnesota retailers must comply with the Minnesota Food Code, which is also based on federal regulations. Minnesota Administrative Rule “Food Additives” states that food must not contain unapproved food additives, substances, or additives that exceed amounts specified in the Code of Federal Regulations.
If the MDA identifies the addition of illegal hemp extracts to food, our staff will work with the business owner or operator to clarify what is and what is not legal to ensure no adulterated foods are being produced or sold.
· More information about MDA’s Industrial Hemp Program can be found on their website’s FAQ page.
· More information about medical marijuana or medical cannabis can be found on the Minnesota Department of Health Medical Cannabis website.
· More information about FDA research into cannabinoids, including CBD, can be found on their site “What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD.”