The North Dakota Department of Agriculture Hemp Program Coordinator John Mortenson circulated a letter Friday, July 21, to hemp industry professionals regarding changes to state law that will take effect Tuesday, Aug. 1.

The letter clarified to retailers and manufacturers once Senate Bill 2096 comes into effect, changes to products being manufactured and marketed by some hemp processors containing psychotropic and synthetic substances derived from hemp.

The Senate bill affects altered or modified cannabidiol (CBD) results in synthetic compounds like Delta variant THC, THC-O and HHC amongst others. The marketing of these products in states that still prohibited recreational marijuana use like North Dakota has exploded since 2018, with multiple vendors and storefronts popping up dedicating large sections of their show floors to such products from cultivated flower, topical creams to edible products, vapes and tinctures. Minot has several local entrepreneurs offering products in that gray area for state and federal law enforcement.

Mortenson’s letter said the new language in the North Dakota Century Code regarding CBD and cannabigerol (CBG) products allowed “a majority” of these products with restrictions “identified through rule.” The letter didn’t articulate what the rulemaking processes entailed but included “some public meetings and chances for the public and industry to comment on the rules for CBD and CBG products.”

Mortenson said the intent of the new law was to allow certain products while still preventing the production, process and sale of psychotropic or purely synthetic hemp-derived products like the many variants of Delta-THC. A fact sheet was included with the letter, breaking down examples of what constituted allowed and prohibited hemp products. The hemp plant has a myriad of uses from textiles, rope, paper, to a concrete replacement called hempcrete. The fact sheet states that broad spectrum, full spectrum and isolates of CBD and CBG are still allowed if their total THC level does not exceed 0.3% or any amount determined by the ag commissioner or contain any psychoactive or psychotropic compounds.

The anxiety experienced for some business owners hasn’t been alleviated by Mortenson’s letter. They say they are left scratching their heads. Most smoke shops and enthusiast stores in the Minot area that spoke to The Minot Daily News said while the loss of sales that will come with the prohibition of certain products like CBD edibles will certainly sting, most of them expect to weather the storm. However, several Minot establishments have dedicated a great deal of their show floor to what could be an inventory of unreturnable and unmarketable products.

Mortenson spoke about the confusion and concerns brought forward by some local owners but deferred to Ag Commissioner Doug Goehring to straighten out the particulars. Goehring clarified that while the public and industry will be able to provide comments on the rules and applications of the law during this process, any changes made by the department must still follow the law as written.

“These products aren’t even legal in states that have legalized medical or recreational cannabis. Anybody with a chemistry background could figure out that if we cut this into a Delta 9 or Delta 8 it can be sold as CBD even though it is THC. The hemp law was not meant for that.” said Goehring.

The final version of SB 2096 signed into law by Gov. Doug Burgum in the spring included specific language that prohibits the sale or use of any products containing chemically-derived cannabinoids manufactured through modifying hemp extract and which cites the Food, Drug and Cosmetic Act which bans any product that incorporates hemp-derived products as ingredients in supplements, food or beverage products, or that are marketed with medical claims.

According to Goehring, the so called loophole in the 2018 Farm Bill only existed because the FDA and other federal agencies have not been interested in proceeding with any enforcement of existing federal law that bans the use of synthetically altered CBD as an ingredient in food, much to the chagrin of Goehring and his peers in other state agencies around the country.

“Since CBD and hemp were legalized, I and other commissioners in other states have asked the FDA to clear this issue. They’ve been silent. These products are illegal by federal and state standards right now. I’m seeing it in pet food and animal feed now and goldarn it, the FDA needs to get involved. When we came to the FDA about this, we were pretty much told unless it’s a labeling issue, they won’t proceed,” Goehring said. “They finally admitted they would like Congress to address it. They know these things are out there, but they’re expecting clarity from Congress in the future and until they get that, they’re not enforcing.”

Goehring said officials will be out in the field collecting samples of products on sale to ensure compliance from proprietors and that efforts will be made to help retailers get up to speed on the changes ahead.

“Come August 1st, we’re closing the door on products with any psychotropic drugs. If it’s pure CBD hemp product it is allowed, as long as you don’t include health care claims that the product is healing or deterring for certain conditions, then you’ve crossed the line.” Goehring said, “Now that we have something specific with the rules, we wanted to get ahead of this and make people aware. We don’t want this to be a gotcha game. I can understand why there’s frustration.”