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Court of Appeals ruling sets off alarm bells for CBD industry leader
Possessing any amount of tetrahydrocannabinol (THC) in liquid form is enough to secure a drug conviction, an appellate court has ruled. Prosecutors need not determine how much THC is present to meet its burden of proof—merely that it is present at all.
That is Monday’s unanimous, precedential ruling in the state Court of Appeals’ State v. Loveless case, written by Judge Matthew E. Johnson.
The ruling potentially creates challenges for the state’s hemp-based cannabinoid, or CBD, industry, which manufactures waxes, oils and gummies, as well as leafy products derived from legal hemp—all of which contain trace amounts of THC.
Yet it represents a semi-victory for the case’s appellant, Jason James Loveless, 45, of Brainerd. The ruling partly overturns his 2020 drug conviction and partly upholds it.
Without remanding, the ruling tosses out his 5th-degree felony drug conviction for possessing more than 42.5 grams of leafy material, which Crow Wing County prosecutors convinced a jury was a stash of illegal marijuana. He denied it.
The state never proved the leafy material contained THC concentrations in excess of 0.3% on a dry weight basis—the legal limit for hemp-derived consumables. Therefore, the Court of Appeals ruled, the state never proved the material was pot. So that count was overturned.
Also of note, the opinion found that, for purposes of determining whether a 2019 law change supports reversal, the amelioration doctrine applies to Loveless’ case.
That doctrine, which came to the fore in Minnesota jurisprudence after the state Supreme Court 2017’s State v. Kirby decision, supports partial reversal, the Court of Appeals found. Even though the Legislature changed its definition of “marijuana” to exclude hemp only after Loveless’ conviction, his appeals were still in play when the law went into effect. Therefore, the conviction was not yet final and amelioration applies.
That’s where the good news ends for the appellant.
Monday’s ruling upholds his conviction for possessing vaporizer cartridges containing an amber-colored liquid mixture. A state BCA lab analysis determined the liquid contained THC, though it did not measure the compound’s concentration.
That doesn’t matter, the court found, because the 0.3% threshold applies only to “leafy plant material” under state law, not liquids.
Judges Theodora Gaïtas and Renee Worke signed onto Monday’s unanimous opinion.
Burden of proof
Loveless had argued that to meet its burden of proof, the state needed to prove THC concentration levels exceeded legal thresholds for all the material seized from the bedroom of a house where he was staying as a guest.
The state argued that it satisfied its burden because a BCA forensic scientist testified that, based on her examination, the material contained THC.
Because Minnesota’s definition of marijuana was amended only recently, the court noted, no precedential caselaw specifically addressed the point.
Loveless’ defense relied on the state’s controlled substance statute, Chapter 152, including Minn. Stat. § 152.02, subd. 2. That 2018 law excludes hemp from the definition of “marijuana”, as defined elsewhere in statute (Minn. Stat. § 152.22, subd. 5a).
It gave “hemp” the definition found in Minn. Stat. § 18K, the state’s “Industrial Hemp Development Act.” That section, which appropriates the federal government’s updated definitions, says that “hemp” comes from the plant cannabis sativa L and that it is:
“… any part of the plant, whether growing or not, including the plant’s seeds and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers … with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis. Industrial hemp is not marijuana…” [Emphasis by the court.]
When it came to the leafy material seized from Loveless, the court agreed with Loveless’ argument that the missing concentration numbers matter.
Because of the change in marijuana’s statutory definition, the court found, prosecutors needed to produce more evidence than just a BCA lab’s say-so when it came to the leafy material. The lab declared the substance pot based on visual and color examinations, and on gas chromatography and mass spectrometry (GS-MS) tests, which detected the presence of delta 9-THC, but not its concentration.
“Without having determined that concentration, the forensic scientist did not have an adequate basis from which to conclude that the leafy plant material is marijuana rather than hemp.”
Better circumstantial evidence could have saved the conviction, the court said, but it was lacking here.
“In this case, the state’s circumstantial evidence does not negate the rational hypothesis that the leafy plant material found in the plastic tote box is cannabis with a concentration of delta-9 tetrahydrocannabinol that is 0.3% or less, in which case it would be ‘hemp’…”
When it came to liquid material found in his vape containers, Loveless’ luck ran out.
The problem, as the opinion explains, is that he was charged with a 5th-degree Schedule I controlled-substance offense. Under Minn. Stat. § 152.02, subd. 2(h)(2), the list of Schedule I substances still includes “tetrahydrocannabinols naturally contained in a plant of the genus cannabis.” That statute’s language hasn’t changed since 2012.
“Unlike the definition of marijuana, the inclusion of tetrahydrocannabinols in Minnesota’s Schedule I does not make any exception for hemp or for a substance or mixture that has a concentration … that is 0.3 percent or less on a dry-weight basis.” [Emphasis by the court.]
In a footnote, Johnson explains the point further. He says state lawmakers’ failure to include the 0.3% threshold sets Minnesota’s 2018 Schedule I statutory rewrite apart from the federal government’s. The federal revision continues prohibiting possession of THC, “except for tetrahydrocannabinols in hemp.” The quoted phrase was not added to state law, Johnson notes.
To Johnson’s court, this means that, unlike the burden of proof required for the leafy material, a BCA forensic scientist’s testimony that she performed visual and GS-MS tests on the liquid and detected THC suffices for conviction.
Loveless did not cross-examine the forensic scientist on that point at trial, the court notes.
Johnson’s ruling acknowledges that a subsequent special session agriculture bill, passed in 2019, appears “to recognize or assume the lawfulness of vaporizer cartridges containing low concentrations” of delta-9 THC in CBD products.
That law, authored by Sen. Karla Bigham, DFL-Cottage Grove, says “a product containing nonintoxicating cannabinoids may be sold for human or animal consumption,” if certain requirements are met. One requirement is that THC levels can’t exceed the 0.3% dry-weight barrier.
But that language’s presence in statute can’t undo Loveless’ conviction, the Court of Appeals found. Unlike the federal government, which specifically exempted all THC derived from hemp up to the 0.3% threshold, Minnesota’s law doesn’t.
Monday’s ruling has set off alarm bells in the industry. John Strohfus, Minnesota’s first approved industrial hemp grower and the board chair for the U.S. Hemp Growers Association, is among those concerned.
He said the opinion could encourage over-aggressive prosecutors to charge and convict people for drug crimes, even when what they possess is liquid CBD, which Minnesota lawmakers in 2019 declared legal.
He said it makes no sense for hemp to be permissible in dry format but prohibited as a liquid when the “overall Minnesota and federal definition” of hemp makes it legal for human consumption if it falls under the 0.3% THC limit.
“It seems a far overreach and clear injustice to have such overwhelming legislative intent be interpreted in conflict with the Schedule I language regarding the liquid substance,” he said.
Strohfus worries the ruling could make an outlaw of him and others in the CBD business. “It goes without saying that all hemp growers, processors and retailers could be convicted under such interpretation,” Strohfus said. “It ought to cause an outcry of concerns for the public.”
Still, he expressed confidence that the ruling wouldn’t withstand review. “It’s very disappointing and in my opinion an incorrect ruling, which I am confident would be overturned at the Minnesota Supreme Court,” Strohfus said.
In an email Monday, State Appellate Public Defender Cathryn Middlebrook said her office is considering a petition for Supreme Court review. But she said she had yet had to speak to her client and did not have a definitive answer.
Crow Wing County Attorney Donald F. Ryan did not return a call seeking comment on whether he plans to appeal the portion of the ruling that his side lost.