While recreational adult-use cannabis became legal in Minnesota on August 1, 2023, the Office of Cannabis Management (OCM) is just beginning to develop rules to regulate both cannabis product and hemp-derived consumer product industries. A rule is a governmental agency statement intended to guide implementation and enforcement of provisions contained in a law. Like statutory law, a rule is fully enforceable and binding, and it provides specific guidance on the parameters and implementation of a statute passed by the legislature.

Minnesota’s new cannabis law authorizes the OCM to adopt rules for any provision under the law. This post provides an overview of the rulemaking process in Minnesota, the time frame of when the OCM will gather public input, and information on how individuals can advance public health during this critical rulemaking period.

1. What is Rulemaking?

Like federal agencies, state agencies are required to follow certain procedures whenever agency rules are created. In Minnesota, this process is set out in the Administrative Procedure Act.

Under the Administrative Procedure Act’s rulemaking process, an agency must take certain steps before formally proposing rules. These include:

• Maintaining a docket that contains information on rules the agency is intending to propose.
• Soliciting a 60-day comment period from the public on the subject matter of the proposed rules.
• Preparing statements that include evidence and arguments in support of the agency’s proposed rules.
• Publishing notice of the proposed rules in the State Register.
• Holding a public hearing conducted by an administrative law judge in the Office of Administrative Hearings if twenty-five or more people submit a written request for a hearing (most agency rules are adopted without a request for a public hearing).
• Determining the cost of the proposed rules on small businesses and cities.
• Reviewing the rules by an administrative law judge.
• Reviewing the rules by the governor, who may veto all or part of proposed rules before they take effect.

2. What is Expedited Rulemaking?

Under Minn. Stat. § 14.389, the legislature may authorize state agencies to adopt rules without following the usual rulemaking process by exempting certain rules from administrative rulemaking. For an expedited process to occur, the law must state that an expedited process is authorized to adopt rules. Minnesota's cannabis law does expressly authorize the OCM to implement the provisions of the new law using the expedited rulemaking process.

Under this expedited rulemaking process, a state agency still must take certain steps to adopt rules:

• The agency must publish notice of its proposed rules in the State Register and mail notice by U.S. Mail or e-mail to persons who have registered with the agency to receive mailed notices.
• The agency must allow 30 days for comments following publication in the State Register.
• Within 14 days, an administrative law judge in the Office of Administrative Hearings must approve or disapprove of the form and legality of the proposed rules. If approved, the agency may then adopt the rules.

Under the expedited rulemaking process, no public hearing must be scheduled unless the legislature specifically provides for it, which is not the case under the cannabis law.

As mentioned, the cannabis law does authorize the OCM to use the expedited rulemaking process for any rules for which notice is published in the State Register before July 1, 2025.

3. What is Happening Now with the OCM’s Rulemaking and How Can I Participate?

The OCM is currently seeking input from the public through five online surveys as it begins to draft rules for the new cannabis and consumer hemp industries. (Note: the deadline for the first survey has passed) The OCM describes this survey period as its “first phase of rulemaking engagement,” with the following timeline:

Each online survey contains a similar format:

• You will first be notified that any input provided is public data under Minnesota law and thus available upon request by anyone seeking this information.
• You will next be prompted to fill out your contact information, which will also be part of the public record and used by the OCM to stay in touch with you. However, you may choose to submit your input anonymously.
• On the next page, you will then select the topic on which you would like to provide input (Note: at the end of the survey, you will be able to provide additional comments on other specified topics covered in the survey).
• You will then have the opportunity to answer specific questions about the selected topic. Examples include:
  • What opportunities exist for your selected area of interest?
  • What are your concerns with the particular area of interest?
  • What are the technical or practical set-up considerations needed in this area of interest (support, training, tools, technology, etc.)?
  • What is most important for the rulemaking body to know and understand about this area?
• You will next be able to identify additional topics of interest that matter most to you, provide feedback on topics not covered by questions in the survey, and provide website links to references that you believe to be helpful for the OCM’s consideration during the rulemaking process.
• In addition to, or in lieu of, the online surveys, you may communicate with the OCM by email at cannabis.rulemaking@state.mn.us. Be sure your email contains the subject line “Feedback Reference,” and that any input you provide is organized by topic, as applicable. Emailing the OCM is particularly useful if you have a document to share that is not accessible on the internet, or if you wish to submit comments on topics in which the online survey deadline has passed. Remember that any input you submit, whether by email or online survey, will be classified as public data. The OCM advises that all comments submitted, in whatever format, also be kept by you, so that you may easily access your submitted input in the future.

Note that your submitted comments to the OCM at this stage will not be included in the formal rulemaking record submitted to the administrative law judge during the rulemaking process. If you would like your comments to be part of the official rulemaking record, you must resubmit them after the draft rules are formally proposed. Therefore, all written petitions, requests, submissions, or comments must be received by the agency or the administrative law judge after publication of the agency’s notice of intent to adopt the rule in the State Register. The OCM website will post updates on submitting comments for the formal rulemaking record.

With deadlines quickly approaching for these initial surveys, you may want to expand on the evidence you provide, key prevention and public health policies related to the proposed rules, and resources with more time to draft your comments for the official record. The Public Health Law Center will work with the Minnesota Prevention Resource Center to identify resources to share in its comments.

4. What Key Policy Areas Will Have the Biggest Implications for Public Health and Prevention?

While the OCM’s surveys cover a broad range of topics for which OCM will be drafting rules, there are certain areas, in particular, that have direct public health and prevention implications. Providing input on these survey topics is an important way to communicate to the OCM that public health and prevention should be prioritized as the agency begins drafting rules.

• Labeling and Packaging
  • The rules should require that prominent health warnings be placed both in text and in pictures on product packaging and that they are clearly visible from the outside of the package.
  • The cannabis law requires product labels to include a “Keep this product out of reach of children” warning (see Minn. Stat. § 151.72, subd. 5a(e)(4); and Minn. Stat. § 342.63, subds. 2(8) and 3(a)(13); however, additional provisions permit “any other statements or information required by the office [of cannabis management]” regarding labeling. (See Minn. Stat. § 342.63, subds. 2(9) and 3(a)(14).
    • The OCM’s rule could, therefore, require prominent, rotating, front-of-pack, graphic health warnings on packages and ads, consistent with those now being adopted by the FDA for cigarettes, as well as those used by Canada for cannabis.
  • The law states both pre-packaging containers and packaging containers of “cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products sold to customers or patients” must be “plain, child-resistant, tamper-evident, and opaque.” (See  Minn. Stat. § 342.62, subd. 2(a).)  However, the term “plain” is not defined.
    • The OCM’s rule could, therefore, define “plain” or “plain packaging,” as using measures to restrict or prohibit the use of logos, colors, brand images, or promotional information on packaging other than brand names and product names displayed in standard color and font style. Hawaii and Canada have adopted plain packaging standards for cannabis. In sum, plain packaging language should be clearly defined and maintained, and the WHO Framework Convention on Tobacco Control guidance regarding plain packaging should be adopted.
• Retail Environment
  • The law does not restrict or prohibit price discounts for cannabis products. The rules could, therefore, fill in this gap by restricting or prohibiting coupons and other forms of point-of-sale discounting. In commercial tobacco policy, such measures have proven to be effective in discouraging people, especially youth, from purchasing more products than they might have otherwise purchased, thus driving up consumption.
  • The law does not restrict or prohibit flavored products. The rules could restrict cannabis-infused beverages, inhalable products that are flavored or marketed using flavor-indicating names, and other youth-appealing products.

Now that the OCM has started the expedited rulemaking process, the time for public comment is a critical opportunity to impress upon the agency the importance of prioritizing public health and prevention as the cannabis industry takes shape and these products emerge in the marketplace.

Marisa Katz
Staff Attorney, Public Health Law Center
December 15, 2023

This post is funded by the Minnesota Department of Human Services, Behavioral Health, Housing, and Deaf & Hard of Hearing Services Administration.