Decriminalization Versus
Commercialization
The first thing I think we need to establish is the language. You may have noticed already that I shy away from calling what happened in Colorado “legalization.” Whether or not that word is accurate, it doesn’t fit the reality of what happened, nor does it fit the meaning that most people assign to it. To the majority of the world, “legalization” is essentially decriminalization. We hear it said and imagine a place where people are no longer locked up for having a dime-bag in their pocket, where an adult doesn’t fear law enforcement kicking in the door when they are smoking a joint in their basement. Honestly, I have never seen anything wrong with a society like that. Casual users of illicit substances shouldn’t be locked up, in my opinion, and in reality they seldom are, although we are told a very different story. The realities of incarceration around marijuana need more space than a few sentences in this chapter, so I will spend more time on it later.
What I have come to learn, along with many other Coloradans, is that what most thought was simple decriminalization was really commercialization. And that it goes far beyond a plant that can be found in nature and was used for thousands of years by ancient societies. The law was written to not only support but to create a commercialized market for THC. Every “recreational” law passed since (Washington, Oregon, Alaska, Massachusetts, California, Nevada, and Maine) has followed suit.
I realize that I may be getting ahead of some readers’ understanding already when I say “THC.” We need an effective working definition of this thing that I will refer to a good deal moving forward. THC, or tetrahydrocannabinol, is the chemical responsible for most of marijuana’s psychological effects; in other words, the part of the cannabis plant that gets you high. Without THC, cannabis is basically hemp, and the more THC there is in the plant the higher one gets consuming it. THC has few, if any, medicinal qualities, and according to a recent study1 published in the prestigious journal The Lancet, more THC equals more psychosis and mental illness. It’s also important to note that THC can be consumed in many different ways; it can be smoked, eaten, vaporized, and absorbed topically. While there are a few examples recently of people snorting and injecting THC, neither is a very effective method of ingestion so we won’t be covering those at all. In A64 marijuana is defined as:
MARIJUANA OR “MARIHUANA” MEANS ALL PARTS OF THE PLANT OF THE GENUS CANNABIS WHETHER GROWING OR NOT, THE SEEDS THEREOF, THE RESIN EXTRACTED FROM ANY PART OF THE PLANT, AND EVERY COMPOUND, MANUFACTURE, SALT, DERIVATIVE, MIXTURE, OR PREPARATION OF THE PLANT, ITS SEEDS, OR ITS RESIN, INCLUDING MARIHUANA CONCENTRATE.
What’s “marihuana concentrate” you ask? Much more on that later. The point is that we did not just protect the plant, we protected the right to manufacture and sell every imaginable byproduct, derivative, and component that can be made from the plant. Think of it like not just sugar but everything you can make with sugar. The guys who penned A64 didn’t make a mistake with this definition; they knew exactly what they were doing. Both are lawyers who had dedicated their careers to marijuana law and these guys are experts in the field. While the majority of people, even people in my industry, didn’t have any idea what a concentrate was and thought that edibles were just baked goods that left your teeth full of stems, Brian Vincente and Christian Sederberg knew better. In addition to being experts on weed, they are shrewd lawyers who recognize the legal difference between a “should,” a “may,” and a “shall.” Their role and rise to stardom will be discussed in a later chapter, so back to the vernacular. “Commercialized” works better than “legalized” and “THC” is more accurate than “marijuana.”
To say that we simply “legalized” the plant is misleading and brings us to the first major point where I ask you to step away from the preconceptions you have about marijuana. This is about commercialized THC and The Industry that supplies it, in all its forms, to the public. As of this writing, the City and County of Denver has eighty-plus more retail marijuana stores than McDonald’s and Starbucks combined. While these weed stores do sell a form of the actual cannabis plant, much of the commerce done is in concentrates, edibles, and THC that can be vaporized. In a few short years we Coloradans have become world-renowned leaders on the extraction of highly potent THC from the plant, and its manufacture into an almost unimaginable amount of ways to consume that THC. The intersection of a mind-altering substance with American-style capitalism is a reality in Colorado, and one that has had predictably ugly results.
To support the crowded weed industry that has sprung up and that continues to grow at breakneck pace, two things must happen:
1. Current users must be converted to more frequent users.
2. New users must be created and captured.
We can’t have the number of stores that we have in Colorado and expect them all just to fight over existing demand; that’s just Econ 101. When supply outpaces demand, demand must be created.
None of this would be a problem if we were talking about something totally harmless, say, the sale of roses. If tomorrow we suddenly became the rose capital of the world, producing roses of a higher quality at a greater rate than anyone else would be no big deal. Sure, there would be unforeseen consequences, we might run out of land to grow roses and might have issues with water needed and the infrastructure to ship them out, but for the most part it would be pretty benign. Unleashing a hoard of rose merchants in Colorado driven by a need to sell more roses to keep their doors open would do nothing more sinister than making Colorado smell nice. The fact that they would be driven to sell us more and more roses to support their business wouldn’t matter much. The principle is the same: to support the growing commercialized industry, Colorado’s THC salesmen need to sell more weed to stay in business. This business is unlike any other that I can think of in that The Industry has no federal oversight, and it has grown at a pace that’s made building and enforcing responsible regulation totally impossible. It is also a product with such amazing potential for refinement that allowing that refinement without proper oversight has led to pandemonium on the ground—and it’s just getting started.
I’ll give several examples to support the statements above. One of the easiest to get your brain around is soda. Ten years ago, the idea of drinking THC would have gotten a good laugh in most dispensaries. It wasn’t one of the ways that we got high and for lots of reasons would have been something that I think most people would have frowned upon. Following the commercialization of THC in Colorado, I started to notice a diversity in “edibles” (candies, cookies, chocolate bars, that kind of thing) that was alarming. The first time I saw an ad for THC-infused soda I was floored. Soda? Sugary, carbonated, easy-to-conceal soda! Per Colorado’s law limiting THC in edibles and infused products, the first THC soda I saw had the legal limit of THC, 10 mgs. A few months ago, I came across an ad for a soda with 350 mgs in the bottle. Keef Cola offers flavors including Cherry Bomb, Blue Dream, Lemon Lime, Purple Passion, etc., and they have managed to get 350 mgs of THC in each bottle, along with plenty of sugar. Under Colorado law that means that each of those sugary, carbonated, pop-top bottles has thirty-five individual servings in it. Here is a perfect example of an industry racing to innovate and making a product that is insanely strong with no regard for how safe it may or may not be. Now for the regulation side. All we have to do is tell them to knock it off, right? Get these guys to put a more responsible dose in their soda, stop with the cartoon characters being used to sell it—you’ll see plenty examples of that in this book—and make them package it in a way that makes consuming thirty-five legal servings all at once hard. What we hear from The Lobby spokesmen is that they want this to work worse than the naysayers, that they are the ones with their livelihoods on the line, so of course they will be responsible! We could say that with great power comes great responsibility. The Industry will regulate itself because no parasite kills its host; they don’t want us to turn against them before we all have a chance to see how easy this all was and how well it will work worldwide. If you take those kinds of statements at face value, I have a bridge I’d like to sell you.
We don’t think about much in this country past this financial quarter’s return. If we were really forward thinking, we’d focus on next quarter. Cash rules everything around me (props to those of you who finished that verse in your head) and the job of business in America is to make money. If a soda with 350 mgs of THC will make money then, in a way, it’s the job of The Industry to sell that soda and get paid!
In Colorado, state committees have been meeting to establish regulations about how to mandate packaging indicating that what’s inside can get you high—really, really high in many cases—but so far all of the proposals have been struck down or sessions have ended in gridlock. Many manufacturers came out strongly opposed to any regulations. They were afraid of the cost and the trouble it would make for them to implement these regs. At the forefront of the pushback was Dixie Elixirs, the biggest manufacture of THC soda in the world. The company argued that dividing bottles into individual serving sizes would cost a fortune, and labeling each serving as containing THC would mean spending even more. Their CEO made over $900,000 last year and has $26,000 in stock options. I’m okay with their margins slimming down a bit in the interest of public safety, but apparently they aren’t! The owner of Dixie Elixirs, a guy named Tripp Keber, said in a speech in 2015 at BevNet, an alcoholic beverage industry conference in New York City reported in Inc. magazine, “I fundamentally believe that it is Big Alcohol and Big Tobacco that will be my future employer.”2 Sound like the weed industry you were expecting?
To make sure that the message about packaging got across to the politicians, a few more lobbyists were added to the payroll and more contributions were made to political campaigns. After a few more palms were greased in the political game, sure enough, the committee punted on the issue and a few more financial quarters were secured to sell whatever Dixie Elixirs wanted, however Dixie Elixirs wanted.
Forgive me for complicating an act as seemingly simple as selling soda, but there is one more aspect to consider: federal oversight.
Each summer, when my daughter and the next-door neighbor set up their juice stand, I’m pretty sure they are breaking about a dozen federal laws and a few state laws. I keep thinking about asking them to have their customers sign waivers but I’m not sure if that would implicate them further should they ever fall under the gavel; parenting is so confusing. There is a valid reason for rules and regulations as administered by the Food and Drug Administration (FDA), the federal agency tasked with food safety. This includes the manufacturing process, the people who work in The Industry, and the impact of producing the products on the environment. Companies that are negligent, and put people at risk, can face criminal charges and also negligence lawsuits brought by consumers. While sometimes I do think we live in an overly litigious society, I’m glad these people are out there making sure we aren’t eating things that are going to hurt us.
When it comes to marijuana and its safety for consumers, however, the FDA has no oversight authority. Why? It’s because marijuana is an illegal substance at the federal level, and it doesn’t look like it will be changing anytime soon. Since it’s illegal, the FDA would be complicit in breaking a federal law if it played a role in oversight of products made with THC. So it’s hands-off for the FDA when it comes to Keef Cola and Dixie Elixirs. The massive infrastructure, well-funded checks and balances, and standard operating procedure doesn’t matter when it comes to the commercial pot industry. The state has to build its own function to match the feds, but their budget is miniscule by comparison and they are in a fierce battle with companies flush with cash from selling the edible products the agencies will be charged with regulating. Kind of wild, right? You would think we would have given this some consideration before passing the laws. There is a chapter coming up about how this really came about that will explain how words become laws. I promise it’s going to piss you off.
So, back to our use of language, decriminalizing something makes it so that users and possessors don’t get arrested. Commercializing makes it okay to manufacture and sell that substance to the public. We have commercialized THC here in Colorado. With this more accurate definition in place, think back to the news stories you may have heard coming out of Colorado; they have been about the industrialization of THC far more than they have been about decriminalizing marijuana. CNN ran a series called High Profits. The “Green Rush” is commonly used to describe the money being made. Recently I read a story entitled “How You Can Cash in on Legal Marijuana.” This is about The Industry selling the THC, not about the end user consuming it. The final chapter of this book discusses my vision for how we can go about refining drug laws to have more common sense, and proposes solutions to problems that have long faced our society. Spoiler alert: those solutions look more like decrim and much less like the laws being put forth by The Lobby that are being voted on all over our country.
1 Feb 2015 Volume 2, No. 3 p. 233–238