Many states with cannabis legalization have manufacturer and dispensary licensees that make and sell cannabis-infused beverages and even cannabis-infused drink mixes. What you don’t usually see is a major liquor retailer carrying any form of cannabis drink. Why? First, states with cannabis legalization on the whole ban alcohol and cannabis being mixed together in a single beverage, and, second, major liquor retailers won’t bother getting a state cannabis license due to a multitude of legal issues, including federal law and how it conflicts with cannabis negatively impacts alcohol licensing. However, Total Wine & More (“Total Wine”) is breaking the mold by offering cannabis drinks in Minnesota.

How can Total Wine sell “THC infused” drinks?

At the start of this month, Total Wine took the bold step of launching cannabis drinks in Minnesota (to start). How is the well-known liquor retailer able to do this? Especially since Minnesota has a highly regulated medical cannabis industry. Here’s how (probably).

Cannabis drinks really mean hemp-derived cannabinoid drinks

The first thing to understand is that the “THC infused” cannabis drinks sold by Total Wine fall into the hemp-derived cannabinoid category. Due to the passage of the 2018 Agricultural Improvement Act (the “Farm Bill“), hemp and all of its derivatives (containing no more than .3% THC) are no longer illegal Schedule I controlled substances pursuant to the Controlled Substances Act. Right or wrong, the Farm Bill enabled a number of states to enact their own hemp-derived cannabinoid laws and rules for food and drinks intended for human and/or animal consumption.

Minnesota has friendly “hemp-derived cannabinoid” edible/beverage laws

Another reason Total Wine probably pulled the trigger in Minnesota on this cannabis drinks launch is that the state is pretty friendly to low THC beverages. While other states prohibit the conduct, Minnesota allows hemp-derived cannabinoids to be put into drinks and food. Minnesota also doesn’t require a license to sell hemp-derived cannabinoid products (although as of October 2, all businesses selling hemp-derived cannabinoid products directly to consumers must register with the state before selling any product), and it has minimal packaging and labeling requirements for hemp-derived cannabinoid beverages. Essentially, the main restrictions under Minnesota’s law in this area are:

  • Only adults 21 and up can legally buy these products;
  • These products cannot be used for external or internal use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or other animals;
  • These products cannot be intended to “affect the structure or any function of the bodies of humans or other animals”; and
  • Synthetic or artificially derived cannabinoids (except for delta-8 and delta-9) are prohibited.

The other interesting twist in Minnesota is that the state allows beverages to contain “two servings of up to 5 mg of hemp-derived THC per container for a total of 10 mg” so long as the hemp-derived THC came from a hemp plant containing no more than 0.3% THC on a dry weight basis (paying credence to the Farm Bill in line with federal law). And these hemp-derived cannabinoid drinks fall outside of the state’s highly regulated medical cannabis program, too.

What about the FDA?

Even though Minnesota’s laws here are focused on “hemp-derived THC”, these beverages can contain naturally occurring cannabinoids like CBD, CBG, CBN, and Delta-8. The Food and Drug Administration (“FDA”) is no fan of CBD. Over the years, it’s sent numerous warning letters to companies selling CBD products that make unsubstantiated health claims, and the FDA considers CBD to be an unsafe food additive (and, therefore, CBD products are also considered adulterated) in violation of the Food, Drug & Cosmetic Act. Ironically though, the FDA will not exert jurisdiction when it comes to cannabis containing more than .3% THC. So, we know that the FDA keeps an eye on CBD and won’t touch cannabis with more than .3% THC, but what about “hemp-derived THC” specifically and these other cannabinoids? At least with regard to Delta-8 and violations of the Food, Drug & Cosmetic Act, back in July, the FDA sent warning letters to six companies making Delta-8 products, stating that Delta-8 “has psychoactive and intoxicating effects that may be dangerous to consumers and it has not been evaluated or approved by the FDA for safe use in any context, including when added to food.” Only time will tell if the FDA picks up the mantel on attacking hemp-derived cannabinoids in food and beverage (or not).

The meaning of Total Wine and Cannabis Drinks

The reason why Total Wine selling “THC infused” drinks is a big deal is because this is a national liquor retailer that’s giving us a peek into the future where, very likely, alcohol and cannabis beverages will live in harmony together for consumers. This is a bold legal move in a very gray legal area, and the high business and legal risk tolerance speaks volumes when it comes to delivering on consumer demand. All in all, it’s a big step forward for the cannabis industry, and yet another business opportunity for enterprising liquor retailers as the law develops (in other states, too).

Contact us

Husch Blackwell’s Cannabis team has the experience to assist companies in navigating the complex and evolving federal legal landscape surrounding the cannabis industry. Contact Hilary Bricken or your Husch Blackwell attorney.

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Photo of Hilary Bricken Hilary Bricken

With a passion for organizational growth, Hilary advises clients in the cannabis, healthcare, and life sciences spaces on transactions, regulatory compliance, governance matters, and other corporate needs.

Hilary likes being a dealmaker: she values building collegial relationships with clients and other attorneys, and

With a passion for organizational growth, Hilary advises clients in the cannabis, healthcare, and life sciences spaces on transactions, regulatory compliance, governance matters, and other corporate needs.

Hilary likes being a dealmaker: she values building collegial relationships with clients and other attorneys, and she loves helping clients create value and business opportunities. She also appreciates the in-depth strategies that transactions rely on.

Much of Hilary’s practice is devoted to mergers, acquisitions, and other transactions, as well as to serving as first point of outside counsel for certain clients. She also assists with entity formation and the drafting of various governance documents and asset portfolio management. In addition, Hilary advises clients on industry-specific regulatory compliance.

Hilary’s experience with the cannabis industry dates to 2010, when she began assisting medical cannabis providers with business questions. It was immediately clear to her that this emerging, growing industry had a massive need for corporate counsel, and she has advised cannabis clients—including many major national and international companies—ever since. Her experience includes cannabis licensing; marijuana and industrial hemp regulatory compliance; mergers and acquisitions; corporate and transactional matters, including negotiating management services agreements, fee slotting agreements, cultivation supply agreements, and intellectual property licensing agreements; receiverships; dissolution and wind downs; and financing and debt restructuring. In 2023, Hilary joined Husch Blackwell out of enthusiasm for the firm’s deep bench of innovators in the cannabis and healthcare space.

Hilary also devotes a significant portion of her practice to healthcare clients, including physicians, physician groups, and medical services organizations, and she represents clients regarding the off-label application of controlled substances.

Known for offering a commonsense business approach to legal questions, Hilary never gives legal advice in a vacuum. She provides clients with definitive guidance that has practical applications, adding value and supporting business goals.