It’s only been about 48 hours since recreational marijuana became legal in Minnesota, and businesses and law enforcement are already butting heads over what products are OK to sell and what’s not.

“Yesterday was the start of a new era for legalized marijuana,” declares Faribault Police Chief John Sherwin.

On Tuesday — the first day of legal recreational marijuana — police seized nearly two dozen plants from what they called a “tent sale” outside a Faribault tobacco shop.

Sherwin says even if the plants are not yet producing THC, the ingredient that makes a user high, they are what he calls “an instrument of a potential crime.”

“The flower has not developed, the bud has not developed,” the chief says. “But when it does, it’s certainly going to be at a level that exceeds that threshold.”

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But Matt Little — the founding partner of NuQanna, a Waseca-based licensed hemp company — disagrees.

“It is a house plant that we’re selling,” he says. “There is no THC in the plant at this time.”

Little says it was he who put those plants on the market.

He says he’s consulted with his attorneys and has the right to sell non-flowering plants.

Little calls them hemp and says they’re completely legal.    

“It is a hemp plant if it’s under 0.3% THC, and it’s a marijuana plant as soon as it goes above that 0.3%,” he says. “There’s no THC in that plant, zero, 100% zero THC. Impossible to have THC in that plant at this stage of its life.”

Tom Gallagher, an attorney with the Minnesota chapter of the marijuana advocacy group NORML, says there’s some confusion in the new law because it doesn’t have specific language about immature plants.

“To me, it’s only to be expected that they’re going to have to visit this in the next legislative session to do some cleanup,” he explains. “When I look at the law researching this afternoon, I don’t see anything making it a crime to sell an immature plant.”

Chief Sherwin says his officers went to the distribution site after receiving citizen complaints.

He notes that no one has been arrested and that his department is consulting with prosecutors about how to proceed in this case.

“There may be some legislative grayness right now in the new laws,” Sherwin says. “If you talk to the folks at the Department of Agriculture, you’ll realize that hemp growers cannot have strains of marijuana growing in their facilities under the guise they’re producing hemp.”  

Jill Todd, the manager of Total Tobacco Outlet, says she was the distributor of the plants.

She explains her attorneys told her the arrangement was legal and that she was doing nothing wrong.

She says she will not be a distribution point until “all the legalities are figured out.”

“I was just advised that this was legal, and I was not trying to do any wrongdoing or have any criminal motive,” she says. “I really hope this sets a precedent so that there is clear communication on what we are allowed to sell and what we are not.”

Little says at his distribution site in Mankato, police responded but allowed him to continue.

Under the new law, you can use and possess cannabis if you’re 21 or older, but you can’t sell it. Licenses for businesses won’t be issued for many months.

Little, who says he’s had a hemp license since 2018, hopes the law can be clarified in the future.

“We’re at a delicate time in Minnesota,” he says. “Laws are very ambiguous, very open to interpretation right now. So, I think, what is the best approach?”