Gov. Doug Burgum signed House Bill 1045 into law last month after the Legislature passed it nearly unanimously. In its original form, the legislation was just a few unremarkable paragraphs aiming to align the state’s definition of hemp with federal law. But as it meandered through the legislative process, the bill grew in scope and specificity, and late amendments brought by the state Attorney General’s Office prohibited the sale of several variations of tetrahydrocannabinol, or THC — the main psychoactive ingredient in cannabis.
The restrictions ban state-licensed hemp growers and processors from creating or selling products that have undergone “isomerization” — a chemical process that transforms cannabidiol, better known as CBD, into THC.
One major target of the bill is hemp-derived Delta-8 THC, which exists naturally in cannabis in trace amounts, but it can be added in concentrated levels to cause users to feel high. An industry for the compound has grown out of a gray area in federal law, and promoters of the bill say it would eliminate the opportunity for bad actors to sell high-concentration Delta-8 THC products without legal repercussions.
David Owen, chairman of pro-pot group Legalize ND, said the way the new state law is written means vendors of THC and some CBD products that contain below the legal concentration of Delta-8 THC — 0.3% — could be facing criminal charges for selling something that was previously allowed. Owen added that he thinks people who simply possess the products could eventually be treated like those found in possession of marijuana, though he was less certain about the implications for users of the products.
“My concern is that from a simple criminal law perspective, you’re turning thousands of North Dakotans into criminals overnight and well-intentioned store owners into felony distributors of a controlled substance,” Owen said.
Owen, whose group has so far unsuccessfully pushed recreational marijuana legalization through the ballot measure process, said the commonly found products are often used to soothe pain and promote relaxation — a “stopgap” for North Dakotans who can’t get into the state’s medical marijuana program. The Grand Forks resident advised followers on the group’s Facebook page last month to refrain from buying Delta-8 and other THC products and dispose of anything they do have. The products are usually sold behind the counter and often take the form of cartridges that can be vaped or gummies that can be eaten, Owen said.
Several smoke shops declined to comment on the bill, citing a fear of police retaliation for speaking with the media.
Lawmakers and state officials contend that Owen’s conclusion is incorrect and products containing below 0.3% concentration of THC will still be legal.
Rep. Mike Beltz, R-Hillsboro, worked on a committee to amend the bill just before it passed and said “as long as they’re not over 0.3%, they’re fine.” Beltz said the intention of the legislation was to go after processors and sellers of high-concentration THC products operating in the state, and he rejected the idea that there could be unintended consequences for legal THC or CBD products.
Mark Hardy, executive director of the North Dakota Board of Pharmacy, said policymakers are trying to correct ambiguities in the law so people intent on selling illicit drugs can’t get off without penalty, but he added that it’s likely “overblown” to say that the new law will shut down the sale of products with very low concentrations of THC.
Mike Rud, president of the North Dakota Petroleum Marketers Association, said he hasn’t heard from any operators of gas station convenience stores who are worried their inventory will be affected by the legal change. Rud said Attorney General Wayne Stenehjem called him to say CBD products sold in convenience stores will not be made illegal. Rud added that Stenehjem told him only a few vendors in the state had been selling high-concentration Delta-8 products, and the Attorney General’s office would be telling them to stop.
A spokeswoman for the Attorney General’s Office declined to comment on the implications of the bill despite the agency having contributed the contested language to the legislation.
Cass County Sheriff Jesse Jahner also declined to comment on how the new law could be enforced, saying he would like to look over it more closely before making judgments.
Owen said laws should be unambiguous, and “the fact that no one’s willing to get on the same page is disappointing.”