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Unintended Consequences

Oct 26, 2017 05:03PM ● By Leland Rucker
For the most part, Amendment 64, the 2012 voter initiative that allowed cannabis sales and possession for adults, has been serving the state pretty well. Colorado’s seed-to-sale plant tracking system, its barriers to market entry, and its tax and fee structures are seen as models by other states, and legislators are regularly consulted on best practices by those interested in legalization. The rollout hasn’t been perfect. One of Amendment 64’s requirements was that lawmakers enact regulations under serious time restrictions, and even though it helped that the state had already instituted regs for medical marijuana, it was creating new rules for a substance still illegal under federal law, and under a strict deadline. And they were dealing with a substance that has been illegal and remains so on a federal level for more than 80 years. There were some early bumps. After a couple of highly publicized incidents shortly after recreational sales began and a New York Times columnist wrote about a miserable time in a Denver hotel room after she ingested a larger-than-suggested dose of an edible product in early 2013, the state spent several months revisiting its rules on edibles and made substantial changes in packaging and dosing that hadn’t been anticipated during the initial rules creation. Lawmakers still face new challenges every session on other unforeseen ramifications arising from the new law, with bills that try and remedy laws that, though well intended, contain problematic loopholes or were the result of compromises that just didn’t work.

IT’S ALWAYS THE FEDS: That cannabis is still illegal on a federal level creates unique difficulties. Although some dispensaries have managed to acquire bank accounts and allow credit cards, most consumers still can’t buy cannabis without cash. A memorandum issued by the Obama administration, still in effect, suggested that banks can work with cannabis companies under certain conditions, but most, even those in small towns that want to help local businesses, have resisted out of fear of its continued federal illegality. Those that do don’t publicize their involvement. The hypocrisy here is palpable: all state-registered cannabis companies are required to pay federal income taxes but not allowed basic business deductions afforded to others. 

ORGANIC, NOT SO MUCH: Consumers in search of “organic” cannabis have a tough time. The US Department of Agriculture and the Environmental Protection Agency are in charge of regulating standards for all agricultural products, and as long as cannabis remains a federally controlled Schedule I drug, neither will get involved in creating rules. Colorado has shown a willingness to develop its own organic criteria based around the DEA and USDA standards, but nothing has come of it so far. That doesn’t mean you can’t find organic cannabis—many growers are organic— but, at this point, you can only rely on their word. But most of the unintended consequences generally fall under the portion of the initiative that says to “regulate marijuana like alcohol.” In some ways it is, but in too many others, there are unintended problems.

CONSUMPTION CONUNDRUM: What’s up with those buses that allow onboard consumption as they ferry people around Denver’s nightspots and dispensaries? Colorado has literally thousands of establishments where you can legally consume alcohol in public. But the legislature hasn’t been able to agree on a statewide policy that would allow any public consumption, and the long-awaited city of Denver plan is still in the application stage. Taking a cue from the state’s opencontainer alcohol laws, several companies found they could operate tour buses that fit under an exemption for motor homes and vehicles “designed, maintained, or used primarily for the transportation of persons for compensation.” Drivers, of course, are not allowed to consume. I’ve been on one of these tours, and they’re a lot of fun and a place for tourists to unwind. It’s hardly a solution for the public consumption problem, but it’s one alternative for out-of-towners who buy cannabis but can’t consume it unless they’re in a 420-friendly establishment or staying with friends.


WHAT’S IN AN OUNCE?: You can buy enough vodka to last the rest of your life during one trip to the liquor store, but you’re restricted to purchasing one ounce of cannabis at a time. It’s a fact that alcohol can be lethal, but nobody has yet come close to a deadly dose of cannabis. Beyond vague arguments about buying and reselling on the black market, I’ve never heard a good explanation of why there's a limit. Have you ever tried to buy flower, edibles, and concentrates at the same time? Daily purchase limits are fairly complicated. Since concentrates, which include dabs, kief, shatter, wax, hash, budder, hash oil, and other products, have much higher percentages of THC than cannabis flower, the state in 2015 conducted a study, “Marijuana Equivalency in Portion and Dosage,” to determine how to bring these different methods of THC ingestion into some kind of balance. Under the original rules, you could buy 28 grams of concentrates or flower at one time. But regulators decided on a standard that says two grams of concentrates are equal to seven grams of flower. Which means that eight grams of concentrates equal one ounce of flower. And 100 milligrams of edibles (a single dose in Colorado is 10 milligrams) equal 3.5 grams of flower. Since cannabis works differently with each person, this means that there are limits on sales, but no real way to know how you might react to what you buy, which is why the state and everybody in the industry encourages new and inexperienced users to always start with a low dose and go slow.

DRIVING DILEMMA: The subject of driving under the influence is and will remain a touchy and tricky one. More drivers are showing up with cannabis in their systems, but there is no real evidence of increased accidents or road mayhem attributed solely to cannabis, and the state has struggled to come up with a way to define intoxication as it relates to driving.

Police can issue a DUI ticket for driving under the influence of cannabis, and lawmakers decided on a limit of five nanograms of THC per milliliter of blood as a baseline for impairment. Alcohol limits have been scientifically established and can pretty closely assess whether a person is impaired. That hasn’t happened with cannabis. The test can show that a certain amount of THC is in someone’s system, but it can’t prove that it causes impairment. “It’s a relatively low limit, and it’s not a per se like you have with alcohol,” Boulder District Attorney Stan Garnett explains. Saliva and urine tests are invasive and often take time before lab results are available. Unlike alcohol, cannabis can stay in the system for a month or more, and though there are plenty of companies working on tests to determine whether a person is intoxicated or merely storing cannabis in his fat molecules, so far none have succeeded. Colorado juries are instructed on the law, which does allow defendants to take the stand and say they can handle their cannabis. “We’ve developed these per se laws with alcohol,” Garnett says. “We’re not at that point yet with marijuana, and we may never be.” 

DOGGIE BLUES: Colorado drug-sniffing dogs have been trained to detect five drugs—heroin, cocaine, methamphetamine, Ecstasy, and cannabis—in vehicles suspected of drug use. Now that cannabis is legal, a Colorado Court of Appeals ruled in July that its odor in a vehicle found by a police dog is not grounds for a search and that law enforcement must have another reason. Which means that current sniff dogs will have to be retrained or retired and new ones will have to learn only four substances instead of five. A final thought: Federal alcohol prohibition ended in 1933, and the legislature still debates and passes bills to regulate it every session, so don’t hold your breath that it will get cannabis right anytime soon.