Minnesota and marijuanaThis is proving to be a big year for cannabis. As a result, we are ranking the fifty states from worst to best on how they treat cannabis and those who consume it. Each of our State of Cannabis posts will analyze one state and our final post will crown the best state for cannabis. As is always the case, but particularly so with this series, we welcome your comments. We have finally crossed the half-way point. The states featured going forward generally have mixed laws when it comes to cannabis. Some good, some bad, and some ugly. Today we turn to number 23: Minnesota.

Our previous rankings are as follows: 24. New York; 25. Wisconsin; 26. Arizona; 27. West Virginia; 28. Indiana; 29. North Carolina; 30. Utah;  31. South Carolina; 32. Tennessee; 33. North Dakota; 34.Georgia; 35. Louisiana; 36. Mississippi; 37. Nebraska; 38. Missouri; 39. Florida; 40. Arkansas; 41. Montana; 42. Iowa; 43. Virginia; 44. Wyoming; 45. Texas;  46. Kansas;  47. Alabama;  48. Idaho; 49. Oklahoma;  50. South Dakota.

Continue Reading State of Cannabis: Minnesota

The cannabis industry must avoid giving fodder for a book like this.
The cannabis industry must avoid giving fodder for a book like this.

Noelle Crombie of the Oregonian blows the lid off Oregon’s lack of any real testing or standards for its medical marijuana products. In her series, “A Tainted High,” Ms. Crombie calls into question the safety of cannabis in Oregon. This is the kind of story that will lead to major realizations and to significant changes and I cannot stress enough how important it is for everyone in the industry to read her article.

A lack of quality testing is not necessarily the most shocking part of Ms. Crombie’s series, as several states still do not require such testing. Rather, it’s that so many commercial medical marijuana manufacturers in Oregon are endangering consumers by using large quantities of unsafe pesticides and other chemicals on and in their products. We have for a while now preached to the marijuana community that products liability will eventually affect it, and this series just emphasizes how shoddy safety practices are putting people at great risk of getting sick or worse. 

To put it bluntly, if the cannabis industry (and not just in Oregon) does not clean up its act when it comes to consumer safety, we can likely expect three things to happen:

  • The government (most likely the State of Oregon) will come in and force a clean-up.
  • There will be a backlash against legalization.
  • Legal cannabis sales will stall or decline.

Ms. Crombie reports the following disturbing facts:

Ten marijuana concentrates, popular extracts made from the plant’s leaves and flowers, were screened. Pesticides were found in nearly all of them. Many of the pesticides detected aren’t regulated under Oregon’s medical marijuana rules, which means that products that contain these chemicals can still be sold.

A total of 14 chemicals were found in eight of the samples, including a half-dozen that the federal government has classified as having possible or probable links to cancer.

Among them: a common household roach killer and another whose health risks prompted the federal government to eliminate it for most residential uses more than a decade ago. Though many growers say they follow organic practices, only one of the pesticides detected in the analysis is approved for use in organic agriculture.

The above means that qualifying medical patients are consuming pesticide-laced cannabis, even in many instances after having been assured by producers, manufacturers, testing companies, and retailers that their products are “organic” or fit for consumption. Ms. Crombie also indicts “[a] combination of lax state rules, inconsistent lab practices and inaccurate test results has enabled pesticide-laced products to enter the medical marijuana market.”

The lack of state mandated testing standards for pesticides and other chemicals is not unique to Oregon, as the following state rundown shows:

California. California has no mandatory quality assurance testing and no mandatory testing for pesticides under its Compassionate Use Act or under any corresponding state regulations.

Colorado. Recreational cannabis must be tested for pesticides, but medical marijuana products do not have the same requirement. SB 260 would mandate pesticide testing for MMJ, but that bill is still awaiting Governor Hickenlooper’s signature — though he is expected to sign it into law. SB 260 requires mandatory testing of MMJ, including for pesticides, but it will not go into effect until July 1, 2016.

Nevada. Nevada requires medical marijuana establishments and independent testing labs abide by its pesticide screening policy.

Florida. Pesticide testing is nowhere even mentioned in either Florida’s Compassionate Medical Cannabis Act of 2014 or in its accompanying administrative regulations.

Illinois.  Illinois’s medical cannabis administrative rules on laboratory testing mandate that: “Immediately prior to manufacturing or natural processing of any cannabis or cannabis-infused product or packaging cannabis for sale to a dispensary, each batch shall be made available at the cultivation center for an employee of an approved laboratory to select a random sample, which shall be tested by the approved laboratory for . . . pesticide active ingredients . . .”

Minnesota. Minnesota selected two labs to test all of its marijuana and, under its permanent manufacturer rules, those labs must accurately test for “pesticide residue” in all products.

New York. New York’s medical marijuana rules require”[t]esting for contaminants in the final medical marihuana product shall include but shall not be limited to those analytes listed below [including] . . . any pesticide/herbicide/fungicide used during production of the medical marihuana product.”

Washington.  Though Washington requires quality assurance testing, it makes testing for pesticides optional. According to WAC 314-55-102(8), “[t]he general body of required quality assurance tests for marijuana flowers and infused products may [but not must] include moisture content, potency analysis, foreign matter inspection, microbiological screening, pesticide and other chemical residue and metals screening, and residual solvents levels.” Washington producers and processors can only use pesticides approved by the state and any product that uses a pesticide must include a statement setting forth exactly what pesticides were used on it. As for Washington’s new MMJ program (which goes into full effect on July 1, 2016), SB 5052 dictates that “medical specific regulations [should] be adopted as needed and under consultation of the departments of health and agriculture so that safe handling practices will be adopted and so that testing standards for medical products meet or exceed those standards in use in the recreational market.”

Alaska. Alaska’s recreational ballot measure doesn’t set forth any specific testing requirements yet, but it does mandate that the Alcoholic Beverage Control Board create rules surrounding the “[h]ealth and safety regulations and standards for the manufacture of marijuana products and the cultivation of marijuana.” So, we’ll have to see what Alaska does for particular testing standards in the future. Concerning medical cannabis, under Alaska’s Medical Uses of Marijuana for Persons Suffering from Debilitating Medical Conditions Act, there’s no mention of quality assurance testing at all.

Could a marijuana product containing high levels of dangerous pesticides and chemicals be considered a dangerous or defective product? Absolutely. Could a cannabis producer, processor, or retailer be sued for its involvement with a pesticide-laced cannabis product? Absolutely. See Marijuana Retailers: Be Mindful of Products Liability and Inaccurate Marijuana Testing Will Lead To Lawsuits.

Bottom Line. If you want to avoid being sued or having your name show up in an article for unsafe cannabis product, you have no real choice but to clean up your act. This is true regardless of the state in which you conduct business.

On October 28, 2014, the United States Department of Justice issued a “Policy Statement Regarding Marijuana Issues in Indian Country.” In this memo, the DOJ stated that its eight enforcement priorities will apply “in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country.” At least one Indian tribe in Northern California plans to take advantage of the DOJ’s policy statement to start its own legalized marijuana farm. Other Indian tribal governments are now considering whether to legalize marijuana for medicinal, agricultural, or recreational use on par with state governments.

Nonetheless, social policy relating to substance abuse in Indian Country has long embraced prohibition for non-prescription drug usage and, in some tribal jurisdictions, alcohol usage. The potential legalization of commercial marijuana cultivation, manufacturing, and distribution in Indian tribal jurisdictions raises complex legal questions as well as whether past social policies should be changed in light of rapidly evolving social policy toward marijuana usage in the United States.

In an effort to address the complicated issues relating to legalization on tribal lands, the Canna Law Group, along with co-sponsor Odawi Law, PLLC, will be hosting the first Tribal Marijuana Conference at the Tulalip Resort Casino, from 8:30 a.m.-5:30 p.m. Registration details and the conference agenda can be found here. Speakers include marijuana legal and policy experts, including Ohio State University Professor of Law Douglas Berman, UCLA Professor of Public Policy Mark Kleiman, and Jacob Sullum, senior editor at Reason.com, in addition to tribal authorities from the Tulalip and Lummi Nations.

The goal of the Conference is to educate attendees regarding the federal government’s treatment of marijuana and how to craft regulatory regimes for Indian tribes that will pass muster under the DOJ’s policy statement, all while keeping an eye to the sensitive policy and cultural issues concerning substance abuse on Native lands.

We hope to see you there!

A Seattle church located in uber-hip Capitol Hill (Mt. Calvary Christian Center) is protesting against Uncle Ike’s, a state licensed cannabis retailer that has opened up shop next door. The church’s lead pastor claims that a cannabis retailer located within 1,000 feet of his church is “an indictment of where our society has come.” This pastor also believes that Uncle Ike’s very existence will inevitably put cannabis into the hands of his congregation’s youth.

Legally, the church has neither standing nor any legal basis to challenge Uncle Ike’s. Just as the church would have no basis for challenging the existence or the location of the liquor store that’s right across the street from and well within 1,000 feet of the church; this liquor store has been there for years — without any protest — despite alcohol’s obvious harms.

Washington State law prohibits cannabis businesses form locating within 1,000 feet of the various types of places listed in WAC 314-55-050(10). That list does not include religious institutions. Mt Calvary’s lead pastor is calling for the Washington State legislature to add churches to its 1,000 foot list or for the City of Seattle to implement its own similar prohibition.

That would be a mistake. And it could set a dangerous precedent in other states as those states undertake marijuana legalization. Why?

As a result of extensive footage and setback requirements in both state and local legislation, the number of eligible locations for a cannabis business in any city anywhere is already severely limited. It is not at all unusual for our cannabis lawyers to spend weeks working with our clients vetting locations to determine whether or not they’ll work. We have confronted this problem in California, Colorado, Florida, Illinois, Minnesota, Nevada, and Oregon, in addition to Washington. If churches are added to Washington’s “1,000-foot-list,” cannabis businesses would almost never be permitted to open based on available space. If legalized cannabis is to have any chance of defeating black and gray market cannabis, we need more cannabis businesses, not less.

Of even greater importance is the need to maintain separation of church and state. Why should a religious institution be treated differently from a political or social institution or a private residence? Why would favoring a religious institution not constitute a violation of our Constitution’s First Amendment requirement to separate church and state?

In addition, the voters of Washington chose not to require cannabis businesses to keep their distance from churches and the NIMBY dissatisfaction of one church is no reason to contradict the will of the people.

Marijuana is being legalized and regulated and one of the reasons for doing that is to reduce its usage by children, and so far that appears to be working. If we start distrusting the efficacy of regulation and initiate rules that will essentially shut down legal marijuana, we likely will be increasing youth access to marijuana where its prohibition actually makes it easier to obtain.

Though we respect the right to protest, we believe that the best hope for a responsible cannabis program in Washington (and elsewhere) lies with the desires of dispensaries like Uncle Ike’s to operate a law-abiding, community conscious business for adults and with state regulations that make that both possible and necessary.

FULL DISCLOSURE: Uncle Ike’s is a client of our law firm.

Minnesota is moving quickly to provide limited access to medical marijuana. Marijuana legalization is generally a slow process, with most states taking a couple of years to go from legalization to having product available for purchase. Yet Minnesota this week announced that it plans to make it possible for medical marijuana patients to be able to purchase cannabis in less than a year.

Its Office of Medical Cannabis also announced that it has already hired a doctor to oversee cannabis research and that it will be working for Minnesota patients be to able to receive medical marijuana beginning in July 2015. The state first needs to select two registered medical cannabis manufacturers from the twelve that actually completed the application and paid the $20,000 registration fee. The state is saying that it will be narrowing the field to two by December 1, 2014. The two chosen cannabis producers will in the first part of 2015 be able to establish four retail sites each around the state so that patients can begin applying in February and March and then purchase medicinal marijuana in July.

Working with local Minnesota counsel our cannabis business lawyers oversaw the filing of a Minnesota producer application. We would have liked to have done more than one, but with only two applicants eligible to go forward as producers, we concluded that we could only represent one applicant without engendering an ethical conflict.

Minnesota hired Dr. Thomas Arneson to oversee research on the effects of marijuana for Minnesota’s upcoming medical marijuana program. He will serve as the state’s expert on medical marijuana, researching and detailing its risks and benefits. Dr. Arneson is an internal medicine specialist who will conduct his research under the auspices of the Minnesota Department of Health’s Office of Medical Cannabis. He will collect and interpret data from patients that use cannabis pills, oils, or vapors for specific conditions. The Office of Medical Cannabis stated that the program Dr. Arneson will run “strives to answer questions related to dosage, side effects, delivery methods, compound interactions, and other considerations specific to various diseases and conditions.”

Conducting cannabis research outside of government has proven to be difficult. A professor of medicine at the University of Minnesota, Dr. Kalpna Gupta, spent four years waiting for approval to study “whether vaporized cannabis was an effective pain relief treatment for patients with sickle cell disease,” before finally receiving the necessary federal government approvals. Dr. Gupta believes that her research itself will take another four years to complete. Though the University of Minnesota hosts one of only two labs in the United States licensed by the federal Drug Enforcement Agency to grow and study cannabis, such privilege matters little if securing approval for a study still takes four years. MinnesotaWhatever happened to the idea that scientific inquiry is a good thing, no matter what it ends up proving in the end? It would certainly be nice if our own government supported the pursuit of truth and knowledge. Scientific studies on the efficacy of marijuana for various different medical conditions are essential, no matter whether they prove its efficacy or not.

Minnesota’s new medical cannabis laws are very restrictive in terms of the conditions for which a patient will be eligible for usage. They also allow cannabis in only non-smokable forms and prohibit any home growing of marijuana.

Though its laws are too strict, we are impressed by Minnesota’s efforts to quickly implement its medical marijuana program and we are fairly confident that these already enacted laws are just going to be the first step towards a massive liberalization of marijuana access in Minnesota.

Yah sure, you betcha.