Proposed Laws and Their
Insanity Versus Rational Changes
So let’s say that this is the direction that we decide we want to move in our country. Let’s say we decide to decriminalize or even commercialize THC. Can it be done better? Yes, it can—if it really is more important to us to allow for another vice substance to be consumed and “regulated,” in a way similar to alcohol. However, this is not the best argument given the many dangerous problems alcohol causes. Still, we could do so much better than the model we have in Colorado. Personally, I would like to see our collective energy focused on combating real local and global issues such as poverty, discrimination, education, clean air and water, terrorism, etc. If we would rather spend our time and treasure figuring out how to get wasted, I submit that this could be done in a more thoughtful way.
Get the corporations out of the equation. Since one can pretty easily grow enough weed to keep one stoned 24/7, why not just let people grow but not allow for retail? If that seems like too much work, how about nonprofit co-ops where people can grow but not make money above the bare essentials required to grow to exchange with others? Why not put a few barriers between people who want to get high and their ability to get high, and make them garden a little bit? There would be no major environmental issues with people growing their own, no advertising campaigns encouraging people to “smoke weed every day,” no lobbyists, no commercial interests, no investors or celebrity endorsements, no need to capture new users or convert current users to more frequent users. Basically little incentive other than getting high would be the main factor in this scenario.
Implement an ascending penalty structure for lawbreakers. The next component of a more thoughtful approach would be an ascending penalty structure to keep people from operating outside of the law. As it stands now, the legalization laws people are voting on all have strict limits built into them about how high a fine can go (thanks to Uncle DPA), making it less than a slap on the wrist for the people breaking the laws we do have.
Penalties should start off with something small, and then grow those fines and other deterrents pretty seriously with each offense. If it was going to cost someone significant amounts of money to break the laws, they would be less likely to ignore them. The people who consistently break the laws are either bad actors who won’t stop selling drugs or users who need help because they are addicted. The treatment court system in this country is a powerful movement that could be used to help repeat user offenders to get sober, as opposed to only punitive measures. Stiff financial penalties for the corporations can encourage adherence to laws but if the writing of laws is always left to The Lobby and The Industry you can bet there won’t be much in the way of deterrents built into them; that would be bad for business.
There are a million miles between where this country has traditionally stood on weed and where we are in Colorado. A commercial market with little in the way of deterrents isn’t anything like the sensible reform people are being sold. It’s kind of like saying, “Texas is too hot for me. I think I’ll move to Antarctica.” There is plenty of land between the two places. As more states consider legalization we need to consider this: If we keep letting The Lobby write the laws, we will continue to have a “fox guarding the hen house” situation. It profits them to have a large and unregulated commercial industry so they will keep proposing laws that allow this.
Anyone really interested in responsible change should look to what New York did to allow for “medicinal” marijuana. It takes real involvement from a physician, one willing to recommend dosage and frequency. Those laws totally restrict smoking anything and require shops to have actual pharmacists onsite to give out the products. There are practical, better ways to do this if we determine to go in that direction.
The Need for Sound Infrastructure
and Data Collection
So let’s say we do decide to focus our collective energy on this thing (remember I think it’s a poor use of time and money, and foolish). What would we need to do?
First off, real data—on health, crime, and driving under the influence—needs to be collected prior to and after legalization/commercialization in a consistent manner. We need to establish benchmarks of acceptability, with consequences triggered if the results are not acceptable. If we don’t set up acceptable numbers prior to changing our laws, The Industry will keep moving the goalposts back, telling us that it isn’t that big of a deal, that it’s not a trend, just an outlier, or whatever. They continue to do it in Colorado despite now having the highest marijuana use rate (adults and teens) in the country, and the most potent weed on the planet. In the early findings report released by the state in March 2016, the first couple of pages are basically dedicated to explaining why collecting data is really dang hard for them. Page one of the executive summary includes this dandy statement: “Consequently, it is too early to draw any concise conclusions about the potential effects of marijuana legalization or commercialization . . . and this may always be difficult due to the lack of historical data.” (Emphasis added.) Without gathering data beforehand you might see broad trends, but the door is left open for The Lobby to add their spin and avoid detection or consequences.
Requiring politicians to set specific thresholds, numbers that will signal when things have gotten bad enough to require intervention, will make it really hard to keep this conversation so one-sided. If we are going to consider the advantages, we need to consider the disadvantages as well. For example, let’s say it is agreed upon that a rise in youth use above 2 percent or adult use over 10 percent would be a big deal. In order to see and address this situation two things need to happen:
1. Several years of baseline data need be collected to make sure we have a starting point prior to the introduction of commercialized THC.
2. After commercialization or legalization, the data needs to be gathered in a totally consistent way for a specified amount of time. If the data reveals gains that exceed predetermined levels, automatic sanctions need to kick in that could not be interrupted by political tomfoolery (not the first word that came to my mind, but I’m hoping cleaner language will encourage lawmakers to take these ideas to heart).
Now that the data problem has been identified, very careful thought should be given to how it will be gathered and how that function will remain apolitical. While possible, it would be a challenge. Funding would be the easiest part of the whole deal. All the tax money we keep hearing about would cover very solid data collection and presentation. Those who profit pay. Funding the initial data collection, before the advent of new tax revenues, would be a bigger challenge but could still be accomplished. Right now we are pretty much giving a thumbs up to whatever bill the DPA spoon-feeds us. Let’s stop doing that! Make the implementation of any retail marijuana be post-dated. In other words, require in the proposed retail law an explanation of where the money will come from to gather baseline data. I get that this is a big responsibility but so is changing the entire course of drug policy in our country. Maybe we could slow up a minute and try to do it wisely. The only people who don’t like the idea of doing this at a slower and wiser pace is The Lobby and The Industry because it will delay their profits. Public health should always be the top priority, not an industry’s profits.
Onto the infrastructure part. The details of Colorado’s Amendment 64 are pretty insane, especially when it comes to the unreasonable time provisions. For example, section 5 of A64 required that the state had to determine how to implement many of the details of the new law before July 1, 2013. Since A64 passed in November 2012, the state had about eight months to comply. My experience is that it would take most state governments eight months to officially decide what month comes after January. I’m making a portion of those regulations contained within A64 available below. It’s small because I don’t want to take up the room, but if you feel like reading it all just look at section 5 of Colorado’s Amendment 64, it’s public record obviously. This stuff gets much more complicated when you start to think about details such as these.
21 (5) Regulation of marijuana.
22 (a) NOT LATER THAN JULY 1, 2013, THE DEPARTMENT SHALL ADOPT 23 REGULATIONS NECESSARY FOR IMPLEMENTATION OF THIS SECTION. SUCH 24 REGULATIONS SHALL NOT PROHIBIT THE OPERATION OF MARIJUANA 25 ESTABLISHMENTS, EITHER EXPRESSLY OR THROUGH REGULATIONS THAT MAKE 26 THEIR OPERATION UNREASONABLY IMPRACTICABLE. SUCH REGULATIONS SHALL 27 INCLUDE:28 (I) PROCEDURES FOR THE ISSUANCE, RENEWAL, SUSPENSION, AND 29 REVOCATION OF A LICENSE TO OPERATE A MARIJUANA ESTABLISHMENT, WITH 30 SUCH PROCEDURES SUBJECT TO ALL REQUIREMENTS OF ARTICLE 4 OF TITLE 24 OF 31 THE COLORADO ADMINISTRATIVE PROCEDURE ACT OR ANY SUCCESSOR 32 PROVISION;33 (II) A SCHEDULE OF APPLICATION, LICENSING AND RENEWAL FEES, 34 PROVIDED, APPLICATION FEES SHALL NOT EXCEED FIVE THOUSAND DOLLARS, WITH 35 THIS UPPER LIMIT ADJUSTED ANNUALLY FOR INFLATION, UNLESS THE DEPARTMENT1 DETERMINES A GREATER FEE IS NECESSARY TO CARRY OUT ITS RESPONSIBILITIES 2 UNDER THIS SECTION, AND PROVIDED FURTHER, AN ENTITY THAT IS LICENSED 3 UNDER THE COLORADO MEDICAL MARIJUANA CODE TO CULTIVATE OR SELL 4 MARIJUANA OR TO MANUFACTURE MARIJUANA PRODUCTS AT THE TIME THIS 5 SECTION TAKES EFFECT AND THAT CHOOSES TO APPLY FOR A SEPARATE 6 MARIJUANA ESTABLISHMENT LICENSE SHALL NOT BE REQUIRED TO PAY AN 7 APPLICATION FEE GREATER THAN FIVE HUNDRED DOLLARS TO APPLY FOR A 8 LICENSE TO OPERATE A MARIJUANA ESTABLISHMENT IN ACCORDANCE WITH THE 9 PROVISIONS OF THIS SECTION;10 (III) QUALIFICATIONS FOR LICENSURE THAT ARE DIRECTLY AND 11 DEMONSTRABLY RELATED TO THE OPERATION OF A MARIJUANA ESTABLISHMENT;12 (IV) SECURITY REQUIREMENTS FOR MARIJUANA ESTABLISHMENTS;13 (V) REQUIREMENTS TO PREVENT THE SALE OR DIVERSION OF MARIJUANA 14 AND MARIJUANA PRODUCTS TO PERSONS UNDER THE AGE OF TWENTY-ONE;15 (VI) LABELING REQUIREMENTS FOR MARIJUANA AND MARIJUANA 16 PRODUCTS SOLD OR DISTRIBUTED BY A MARIJUANA ESTABLISHMENT;17 (VII) HEALTH AND SAFETY REGULATIONS AND STANDARDS FOR THE 18 MANUFACTURE OF MARIJUANA PRODUCTS AND THE CULTIVATION OF MARIJUANA;19 (VIII) RESTRICTIONS ON THE ADVERTISING AND DISPLAY OF MARIJUANA 20 AND MARIJUANA PRODUCTS; AND 21 (IX) CIVIL PENALTIES FOR THE FAILURE TO COMPLY WITH REGULATIONS 22 MADE PURSUANT TO THIS SECTION.23 (b) IN ORDER TO ENSURE THE MOST SECURE, RELIABLE, AND ACCOUNTABLE 24 SYSTEM FOR THE PRODUCTION AND DISTRIBUTION OF MARIJUANA AND MARIJUANA 25 PRODUCTS IN ACCORDANCE WITH THIS SUBSECTION, IN ANY COMPETITIVE 26 APPLICATION PROCESS THE DEPARTMENT SHALL HAVE AS A PRIMARY 27 CONSIDERATION WHETHER AN APPLICANT:28 (I) HAS PRIOR EXPERIENCE PRODUCING OR DISTRIBUTING MARIJUANA OR 29 MARIJUANA PRODUCTS PURSUANT TO SECTION 14 OF THIS ARTICLE AND THE 30 COLORADO MEDICAL MARIJUANA CODE IN THE LOCALITY IN WHICH THE 31 APPLICANT SEEKS TO OPERATE A MARIJUANA ESTABLISHMENT; AND1 (II) HAS, DURING THE EXPERIENCE DESCRIBED IN SUBPARAGRAPH (I), 2 COMPLIED CONSISTANTLY WITH SECTION 14 OF THIS ARTICLE, THE PROVISIONS OF 3 THE COLORADO MEDICAL MARIJUANA CODE AND CONFORMING REGULATIONS.4 (c) IN ORDER TO ENSURE THAT INDIVIDUAL PRIVACY IS PROTECTED, 5 NOTWITHSTANDING PARAGRAPH (a), THE DEPARTMENT SHALL NOT REQUIRE A 6 CONSUMER TO PROVIDE A RETAIL MARIJUANA STORE WITH PERSONAL 7 INFORMATION OTHER THAN GOVERNMENT-ISSUED IDENTIFICATION TO DETERMINE 8 THE CONSUMER’S AGE, AND A RETAIL MARIJUANA STORE SHALL NOT BE REQUIRED 9 TO ACQUIRE AND RECORD PERSONAL INFORMATION ABOUT CONSUMERS OTHER 10 THAN INFORMATION TYPICALLY ACQUIRED IN A FINANCIAL TRANSACTION 11 CONDUCTED AT A RETAIL LIQUOR STORE.12 (d) THE GENERAL ASSEMBLY SHALL ENACT AN EXCISE TAX TO BE LEVIED 13 UPON MARIJUANA SOLD OR OTHERWISE TRANSFERRED BY A MARIJUANA 14 CULTIVATION FACILITY TO A MARIJUANA PRODUCT MANUFACTURING FACILITY OR 15 TO A RETAIL MARIJUANA STORE AT A RATE NOT TO EXCEED FIFTEEN PERCENT 16 PRIOR TO JANUARY 1, 2017 AND AT A RATE TO BE DETERMINED BY THE GENERAL 17 ASSEMBLY THEREAFTER, AND SHALL DIRECT THE DEPARTMENT TO ESTABLISH 18 PROCEDURES FOR THE COLLECTION OF ALL TAXES LEVIED. PROVIDED, THE FIRST 19 FORTY MILLION DOLLARS IN REVENUE RAISED ANNUALLY FROM ANY SUCH EXCISE 20 TAX SHALL BE CREDITED TO THE PUBLIC SCHOOL CAPITAL CONSTRUCTION 21 ASSISTANCE FUND CREATED BY ARTICLE 43.7 OF TITLE 22, C.R.S., OR ANY 22 SUCCESSOR FUND DEDICATED TO A SIMILAR PURPOSE. PROVIDED FURTHER, NO 23 SUCH EXCISE TAX SHALL BE LEVIED UPON MARIJUANA INTENDED FOR SALE AT 24 MEDICAL MARIJUANA CENTERS PURSUANT TO SECTION 14 OF THIS ARTICLE AND 25 THE COLORADO MEDICAL MARIJUANA CODE.26 (e) NOT LATER THAN OCTOBER 1, 2013, EACH LOCALITY SHALL ENACT AN 27 ORDINANCE OR REGULATION SPECIFYING THE ENTITY WITHIN THE LOCALITY THAT 28 IS RESPONSIBLE FOR PROCESSING APPLICATIONS SUBMITTED FOR A LICENSE TO 29 OPERATE A MARIJUANA ESTABLISHMENT WITHIN THE BOUNDARIES OF THE 30 LOCALITY AND FOR THE ISSUANCE OF SUCH LICENSES SHOULD THE ISSUANCE BY 31 THE LOCALITY BECOME NECESSARY BECAUSE OF A FAILURE BY THE DEPARTMENT 32 TO ADOPT REGULATIONS PURSUANT TO PARAGRAPH (a) OR BECAUSE OF A FAILURE 33 BY THE DEPARTMENT TO PROCESS AND ISSUE LICENSES AS REQUIRED BY 34 PARAGRAPH (g).35 (f) A LOCALITY MAY ENACT ORDINANCES OR REGULATIONS, NOT IN 36 CONFLICT WITH THIS SECTION OR WITH REGULATIONS OR LEGISLATION ENACTED 37 PURSUANT TO THIS SECTION, GOVERNING THE TIME, PLACE, MANNER AND NUMBER81 OF MARIJUANA ESTABLISHMENT OPERATIONS; ESTABLISHING PROCEDURES FOR THE 2 ISSUANCE, SUSPENSION, AND REVOCATION OF A LICENSE ISSUED BY THE LOCALITY 3 IN ACCORDANCE WITH PARAGRAPH (h) OR (i), SUCH PROCEDURES TO BE SUBJECT 4 TO ALL REQUIREMENTS OF ARTICLE 4 OF TITLE 24 OF THE COLORADO 5 ADMINISTRATIVE PROCEDURE ACT OR ANY SUCCESSOR PROVISION; ESTABLISHING 6 A SCHEDULE OF ANNUAL OPERATING, LICENSING, AND APPLICATION FEES FOR 7 MARIJUANA ESTABLISHMENTS, PROVIDED, THE APPLICATION FEE SHALL ONLY BE 8 DUE IF AN APPLICATION IS SUBMITTED TO A LOCALITY IN ACCORDANCE WITH 9 PARAGRAPH (i) AND A LICENSING FEE SHALL ONLY BE DUE IF A LICENSE IS ISSUED 10 BY A LOCALITY IN ACCORDANCE WITH PARAGRAPH (h) OR (i); AND ESTABLISHING 11 CIVIL PENALTIES FOR VIOLATION OF AN ORDINANCE OR REGULATION GOVERNING 12 THE TIME, PLACE, AND MANNER OF A MARIJUANA ESTABLISHMENT THAT MAY 13 OPERATE IN SUCH LOCALITY. A LOCALITY MAY PROHIBIT THE OPERATION OF 14 MARIJUANA CULTIVATION FACILITIES, MARIJUANA PRODUCT MANUFACTURING 15 FACILITIES, MARIJUANA TESTING FACILITIES, OR RETAIL MARIJUANA STORES 16 THROUGH THE ENACTMENT OF AN ORDINANCE OR THROUGH AN INITIATED OR 17 REFERRED MEASURE; PROVIDED, ANY INITIATED OR REFERRED MEASURE TO 18 PROHIBIT THE OPERATION OF MARIJUANA CULTIVATION FACILITIES, MARIJUANA 19 PRODUCT MANUFACTURING FACILITIES, MARIJUANA TESTING FACILITIES, OR 20 RETAIL MARIJUANA STORES MUST APPEAR ON A GENERAL ELECTION BALLOT 21 DURING AN EVEN NUMBERED YEAR.22 (g) EACH APPLICATION FOR AN ANNUAL LICENSE TO OPERATE A 23 MARIJUANA ESTABLISHMENT SHALL BE SUBMITTED TO THE DEPARTMENT. THE 24 DEPARTMENT SHALL:25 (I) BEGIN ACCEPTING AND PROCESSING APPLICATIONS ON OCTOBER 1, 2013; 26 (II) IMMEDIATELY FORWARD A COPY OF EACH APPLICATION AND HALF OF 27 THE LICENSE APPLICATION FEE TO THE LOCALITY IN WHICH THE APPLICANT DESIRES 28 TO OPERATE THE MARIJUANA ESTABLISHMENT;29 (III) ISSUE AN ANNUAL LICENSE TO THE APPLICANT BETWEEN FORTY-FIVE 30 AND NINETY DAYS AFTER RECEIPT OF AN APPLICATION UNLESS THE DEPARTMENT 31 FINDS THE APPLICANT IS NOT IN COMPLIANCE WITH REGULATIONS ENACTED 32 PURSUANT TO PARAGRAPH (a) OR THE DEPARTMENT IS NOTIFIED BY THE RELEVANT 33 LOCALITY THAT THE APPLICANT IS NOT IN COMPLIANCE WITH ORDINANCES AND 34 REGULATIONS MADE PURSUANT TO PARAGRAPH (f) AND IN EFFECT AT THE TIME OF 35 APPLICATION, PROVIDED, WHERE A LOCALITY HAS ENACTED A NUMERICAL LIMIT 36 ON THE NUMBER OF MARIJUANA ESTABLISHMENTS AND A GREATER NUMBER OF 37 APPLICANTS SEEK LICENSES, THE DEPARTMENT SHALL SOLICIT AND CONSIDER1 INPUT FROM THE LOCALITY AS TO THE LOCALITY’S PREFERENCE OR PREFERENCES 2 FOR LICENSURE; AND3 (IV) UPON DENIAL OF AN APPLICATION, NOTIFY THE APPLICANT IN WRITING 4 OF THE SPECIFIC REASON FOR ITS DENIAL.5 (h) IF THE DEPARTMENT DOES NOT ISSUE A LICENSE TO AN APPLICANT 6 WITHIN NINETY DAYS OF RECEIPT OF THE APPLICATION FILED IN ACCORDANCE WITH 7 PARAGRAPH (g) AND DOES NOT NOTIFY THE APPLICANT OF THE SPECIFIC REASON 8 FOR ITS DENIAL, IN WRITING AND WITHIN SUCH TIME PERIOD, OR IF THE 9 DEPARTMENT HAS ADOPTED REGULATIONS PURSUANT TO PARAGRAPH (a) AND HAS 10 ACCEPTED APPLICATIONS PURSUANT TO PARAGRAPH (g) BUT HAS NOT ISSUED ANY 11 LICENSES BY JANUARY 1, 2014, THE APPLICANT MAY RESUBMIT ITS APPLICATION 12 DIRECTLY TO THE LOCALITY, PURSUANT TO PARAGRAPH (e), AND THE LOCALITY 13 MAY ISSUE AN ANNUAL LICENSE TO THE APPLICANT. A LOCALITY ISSUING A 14 LICENSE TO AN APPLICANT SHALL DO SO WITHIN NINETY DAYS OF RECEIPT OF THE 15 RESUBMITTED APPLICATION UNLESS THE LOCALITY FINDS AND NOTIFIES THE 16 APPLICANT THAT THE APPLICANT IS NOT IN COMPLIANCE WITH ORDINANCES AND 17 REGULATIONS MADE PURSUANT TO PARAGRAPH (f) IN EFFECT AT THE TIME THE 18 APPLICATION IS RESUBMITTED AND THE LOCALITY SHALL NOTIFY THE DEPARTMENT 19 IF AN ANNUAL LICENSE HAS BEEN ISSUED TO THE APPLICANT. IF AN APPLICATION 20 IS SUBMITTED TO A LOCALITY UNDER THIS PARAGRAPH, THE DEPARTMENT SHALL 21 FORWARD TO THE LOCALITY THE APPLICATION FEE PAID BY THE APPLICANT TO THE 22 DEPARTMENT UPON REQUEST BY THE LOCALITY. A LICENSE ISSUED BY A LOCALITY 23 IN ACCORDANCE WITH THIS PARAGRAPH SHALL HAVE THE SAME FORCE AND EFFECT 24 AS A LICENSE ISSUED BY THE DEPARTMENT IN ACCORDANCE WITH PARAGRAPH (g) 25 AND THE HOLDER OF SUCH LICENSE SHALL NOT BE SUBJECT TO REGULATION OR 26 ENFORCEMENT BY THE DEPARTMENT DURING THE TERM OF THAT LICENSE. 27 A SUBSEQUENT OR RENEWED LICENSE MAY BE ISSUED UNDER THIS PARAGRAPH ON 28 AN ANNUAL BASIS ONLY UPON RESUBMISSION TO THE LOCALITY OF A NEW 29 APPLICATION SUBMITTED TO THE DEPARTMENT PURSUANT TO PARAGRAPH (g). 30 NOTHING IN THIS PARAGRAPH SHALL LIMIT SUCH RELIEF AS MAY BE AVAILABLE TO 31 AN AGGRIEVED PARTY UNDER SECTION 24-4-104, C.R.S., OF THE COLORADO 32 ADMINISTRATIVE PROCEDURE ACT OR ANY SUCCESSOR PROVISION.33 (i) IF THE DEPARTMENT DOES NOT ADOPT REGULATIONS REQUIRED BY 34 PARAGRAPH (a), AN APPLICANT MAY SUBMIT AN APPLICATION DIRECTLY TO A 35 LOCALITY AFTER OCTOBER 1, 2013 AND THE LOCALITY MAY ISSUE AN ANNUAL 36 LICENSE TO THE APPLICANT. A LOCALITY ISSUING A LICENSE TO AN APPLICANT 37 SHALL DO SO WITHIN NINETY DAYS OF RECEIPT OF THE APPLICATION UNLESS IT 38 FINDS AND NOTIFIES THE APPLICANT THAT THE APPLICANT IS NOT IN COMPLIANCE101 WITH ORDINANCES AND REGULATIONS MADE PURSUANT TO PARAGRAPH (f) IN 2 EFFECT AT THE TIME OF APPLICATION AND SHALL NOTIFY THE DEPARTMENT IF AN 3 ANNUAL LICENSE HAS BEEN ISSUED TO THE APPLICANT. A LICENSE ISSUED BY A 4 LOCALITY IN ACCORDANCE WITH THIS PARAGRAPH SHALL HAVE THE SAME FORCE 5 AND EFFECT AS A LICENSE ISSUED BY THE DEPARTMENT IN ACCORDANCE WITH 6 PARAGRAPH (g) AND THE HOLDER OF SUCH LICENSE SHALL NOT BE SUBJECT TO 7 REGULATION OR ENFORCEMENT BY THE DEPARTMENT DURING THE TERM OF THAT 8 LICENSE. A SUBSEQUENT OR RENEWED LICENSE MAY BE ISSUED UNDER THIS 9 PARAGRAPH ON AN ANNUAL BASIS IF THE DEPARTMENT HAS NOT ADOPTED 10 REGULATIONS REQUIRED BY PARAGRAPH (a) AT LEAST NINETY DAYS PRIOR TO THE 11 DATE UPON WHICH SUCH SUBSEQUENT OR RENEWED LICENSE WOULD BE EFFECTIVE 12 OR IF THE DEPARTMENT HAS ADOPTED REGULATIONS PURSUANT TO PARAGRAPH 13 (a) BUT HAS NOT, AT LEAST NINETY DAYS AFTER THE ADOPTION OF SUCH 14 REGULATIONS, ISSUED LICENSES PURSUANT TO PARAGRAPH (g).
Building a sound infrastructure for something as huge as rolling out a market for another vice substance on a statewide level is a big job, a very big job. The people doing it in Colorado—such as Andrew Freedman, the director of marijuana coordination for the state, and Governor John Hickenlooper—tell any journalist who will listen what a great job they are doing, but I see something very different and much of it is because we rushed the implementation process. Maybe their statements are influenced on wanting to keep their jobs?
Not only is there a ton of detailed law and regulation to pen, there are physical preparations to be made as well. Guidelines for use and retail take time to write and implement and the political machine seems to lack much urgency. We should create committees with stakeholders of varying backgrounds (heavy on public health please) and give them specific responsibilities. In Colorado, most work groups were influenced by industry representatives who ended up sitting on them. We need to seriously consider the ramifications of these very complicated issues in order to find reasonable, safe, sensible solutions, rather than simple answers and “good enough” public policy.
While creating the written infrastructure is much of the heavy lifting required prior to rollout, there are plenty of things to get into place physically. If you have followed this issue at all in Colorado, you know that we are super proud of our “seed to sale” tracking labels on each plant. We require that every plant has a radio transmitter the whole time it is being grown to make sure that no hanky-panky, like growing plants that aren’t part of the legal sales system, takes place. Officials loved to talk about it before January 1, 2014, when retail opened, and they still reference it all the time as one of our big successes. With that in mind you might find it surprising to learn that the majority of the hardware for this tracking wasn’t even in the state of Colorado on January 1, 2014, let alone during the grow fest that preceded the opening of recreational retail dispensaries. This should be a huge indicator of how hard all of this really is to implement!
A few other problems that will need physical solutions:
Proactive training of significantly more drug recognition experts (DREs) to keep stoned drivers accountable until someone invents the THC breathalyzer.
Retirement of drug dogs who have been trained to sniff out weed and training a new batch to look only for other illegal substances. (Right now, they detect all substances, including weed, but obviously can’t tell officers which one they have found.)
HAZMAT readiness to deal with mold at grow sites and BHO explosions
Expanded evidence storage capabilities for law enforcement. Illegally trafficked weed needs to be held in evidence, and the quantities are substantial. Weed takes up lots of space and traffickers will still be arrested and prosecuted.
Offices, supplies, cars, training, and all that stuff for whatever agency will be responsible for enforcing laws and regulations. (I’ve got to throw this out there to all of my libertarian friends who love limited government and think this is a way of getting Uncle Sam out of your state; did you ever consider how many more state employees are required to manage this process? This isn’t limiting government, it’s making it bigger.)
The amount of time it will take to get all of these issues ironed out depends on several factors in each state. When determining what the lead-in time should be, one would want to consider existing infrastructure (such as the medical enforcement division) and how well those departments are performing. Just because an enforcement division exists doesn’t mean they are necessarily effective or are prepared for the issues of the scale that will arise when going from medical to recreational pot.
Colorado had an inept medical marijuana enforcement infrastructure according to a report called “Medical Marijuana Licensing Performance Audit,” published by the state in July 2013. The audit accused the health department of not sufficiently overseeing doctors who give out the recommendations to patients for medical marijuana. In 2009, there were 6,000 medical marijuana patients in Colorado, but by March 2013, the list had grown to 108,000 patients. As of 2012, 903 Colorado doctors recommended medical marijuana “red cards” for those patients, but only a dozen of those doctors issued half of the recommendations. One doctor recommended that a patient have over 500 marijuana plants. Does that sound reasonable for one person? What made people think that just making that group bigger would make it work better?
States also need to consider their size and the business climate that exists there. A place like California will be infinitely more complex to roll out recreational weed than Oklahoma, even though California already has a huge medical marijuana industry and Oklahoma has neither. California is so much larger and more diverse that it will take a much bigger effort there than it would in a state with one or two metropolitan areas.
Other Areas of Concern
For the record, I still think we should be spending our time on other issues, and I am not advocating that we change laws nationwide to mimic Colorado. Also, for the record, I think that O Brother, Where Art Thou is the funniest movie of all time. These things being said, I know that not everybody agrees with me on either point, unfortunately. So again, if we do this, we should be smart about it—and try watching that movie again. It gets better every time and is about as funny as it gets.
Disclaimer done, onto problem solving. There are a bunch of issues that need to be fixed. Here are a few:
Banking
Banks in the United States are insured by the Federal Deposit Insurance Corporation (FDIC). It is an independent agency created by Congress during the Great Depression to maintain stability and public confidence in the nation’s financial system. Since the FDIC has to follow federal law, banks that are insured by the FDIC can’t knowingly take money that was made illegally, i.e., selling a federally illegal substance. As discussed earlier, marijuana and its derivatives are still considered a Schedule 1 narcotic and are illegal federally. Because of this, dispensaries and other marijuana-related enterprises can’t keep their money in banks, so the business in Colorado is all cash—hundreds of millions of dollars floating around, all in cash. Colorado has tried a bunch of times to fix this on its own and the Obama administration had even tried another one of its memos (written by Deputy Attorney General James M. Cole), nothing has worked. Banks are risk-averse organizations and they are going to follow the law. We have tried to build collective, co-op style banks, have tried creating weed-only institutions, all sorts of things, to no avail. There is literally around $100 million in cash for THC changing hands around the state most months. You don’t need a PhD in criminology to know what happens when there are tons of drugs and huge amounts of cash in one place—lots of robberies. Apparently many of these crimes go unreported, “Um, yeah, I’m calling to report someone stole my weed.” However, there are several calls like this every day that come in to local police. Crime in and around dispensaries is a big deal in this all-cash big business.
The other issue is that a cash-rich economy provides way more opportunity for laundering money from other “ventures.” Too much cash in an area makes it easier for the bad guys to clean up their dirty money. It also raises some interesting questions about tax collection. Answer truthfully now: if your income were all in cash would you report all of it to the tax man?
To fix this issue it would basically take an act of Congress. To bring the weed industry into mainstream financial markets could be done, but it would be pretty involved and would entail establishing significant safeguards to make sure that this wasn’t the easiest way for criminals to wash their money. The effort would have to be led by the FDIC I think and have some pretty high level support on the Hill. Until we fix this one, we need to stop opening stores. Or I guess we could keep hiring more and more “enforcer” guys to guard the cash with automatic weapons. Have you ever been to a developing nation, where there is a big gap between the “haves” and the “have-nots”? The “haves” usually have guys around who look a lot like they are ready for combat.
Smells
Now that we’ve discussed all the difficult financial stuff, let’s solve an easier, more obvious problem: weed has a very distinctive smell that is pretty strong. On a trip to the zoo at the end of the summer last year, my then six-year-old asked if there were skunks in the parking lot. Even at 8:00 am on a Saturday at a family-friendly place I got to have yet another talk with my kids about drug use.
Last year, a buddy of mine had to move from his super awesome and pretty swanky condo in Denver. Not only was the place right in the heart of everything, he could order “room service” from Elway’s steakhouse! It overlooked Coors Field and had amazing mountain views. Unfortunately, his neighbors smoked weed—apparently that is about all they did—and the smell ended up being too much for him and his wife. The shared walls and shared HVAC system made it feel like they were in the same room. Conversations with the neighbors and the management got them nowhere so they moved.
Smoking weed has somehow become a right in Colorado and heaven forbid you tell someone you don’t want to smell their weed; they flip out and talk about their constitutional rights.
Fortunately, this one is pretty easy to fix. You can’t smoke weed in public in Colorado, but we need to do a better job of enforcing it. Laws about tobacco need to apply to weed. In my buddy’s situation, were it tobacco, the building would have backed him in a second, because it is established and accepted that he has a right to clean air in his home more than the others have a right to smoke. Things are backwards in Colorado (thank you Industry lawyers), now the THC smokers have the rights and the rest of us have to live with it.
There are lots of forms of consumption now that do not require smoking. Mandate people use those in places where your neighbors might smell or my kids could be walking by. Eat a gummy bear rolled in sugar, sip 1/35th of a soda, have a cup of weed coffee.
The reality is that there are hundreds of ways to get high on THC today. If this is going to work, the consumers are going to have to consider the rest of us a little bit as we are asked to consider them. The inevitable question asked by consumers, actually asked by The Lobby/Industry on behalf of the consumers, is “Well, where can I smoke?”
My answer to that is, “I don’t know, not my issue.” Those who choose to consume should be responsible for figuring out how to do so without affecting everyone around them. People still smoke cigarettes and cigars, just less and not in public. Look to the cigarette smokers for an example of how to do things (yeah, I said that).
We also have issues with smells around grow operations and storage. There’s a device called a “nasal ranger” and it directs the smeller so he or she can identify where the weed smell is coming from. It kind of looks like a blow dryer that the operator wears on his or her nose. Google it, it looks as strange as it sounds.
We just need to hire more people willing to put these things on their faces and write tickets. Maybe we should require The Industry to provide this device in Colorado because the smell of grow houses and weed stores gets pretty bad. I’m worried far less about how we would pay for all of those people than I am where in the hell we would find enough people willing to put that thing on their face in public. Maybe a Star Trek convention or something? Sorry, Mom, and all the other Trekkies out there, you’re awesome. You just don’t always seem to have the “looking dignified” thing down. Good news though; your country or at least my state, needs you!
I mentioned the need for recycling the air in my truck at a spot on my commute, but you should smell it downtown! There is an odor of weed in Denver that isn’t just burning plants; it’s from growing and storing them.
Seriously, this one is also easily solved by enforcing existing laws on the smell. The large cultivation facilities need a more high-tech solution, really good air filtration systems. They aren’t cheap but hey, that’s the cost of doing business!
The First Amendment
Before A64 passed, I was in California, participating in a panel discussion alongside three other people, debating the pros and cons of legalization. One of the people on the other side of the discussion was a woman named Amanda Reiman. At that time, she was in academia and doing some work to change weed laws. Today, she is the director of the California chapter of the DPA. During the debate the topic of advertising came up. I shared my fears that we will not contain the advertisements to responsible stuff (like not having cartoon characters selling weed) unless it’s clearly mandated and wondered how we do that while preserving citizens’ First Amendment rights. The intersection of American-style capitalism, vice substances, and the marketing of them doesn’t exactly have the best track record practically speaking and I saw no reason why this would be any different. Amanda told me I was wrong and went on to make a case that The Industry would be their own police because they had so much to lose if they advertised recklessly. Well, I’ll let you be the judge on this one. Are these examples of responsible advertising geared toward adults who choose to consume responsibly?
A bus with all-you-can-smoke weed—and free drinks.
A teddy bear on a rocket telling a college town to stay high. That’s responsible?
That’s an interesting back-to-school special.
“Show us how you make the good times better” translates to “Send us pics of you getting high and doing stuff.” The stoned snowboarder is pretty funny. Unless, of course, you or your kids like to ski/ride on the same mountain as the stoned chick taking pics of the good times.
Okay, you get the point, but I couldn’t resist a few more photos; there are just so many to choose from! Two weeks after A64 passed the lawsuits started, the first one was over advertising and weed mags. The Industry won and that victory for free speech was also a sign of things to come. Unless they are required to agree to restrictions in the same way tobacco and hard liquor have been regulated, we’re in real trouble.
Here is my proposed solution: we agree to only black-and-white words. No pictures of Santa, cartoons, clip art, half-naked women, candy, etc. Advertising is thereby extremely limited and we don’t have to leave it up to the people selling the stuff to police themselves, because they won’t—ever.
Limiting Potency
An effort to cap THC content at 16 percent recently failed in the Colorado legislature. The Lobby made a big stink and this rather thoughtful legislation proposed by SMART Colorado was pretty much DOA. It was frustrating to watch it play out. Sixteen percent was recommended as the number because it is the highest THC content that we have any credible research on (remember that study in The Lancet). We are discussing the dangers of a plant when it’s more of a GMO, and more realistically a synthetic drug that we are dealing with. Limiting potency to reflect the ceiling of scientific research makes really rational sense and should have passed with ease but it didn’t.
End of rant, now for the solution: build potency limits into every law that passes. There will, of course, be issues that come up about how to do this practically, but that is okay. If they want to make money selling the stuff it should be done on reasonable terms. While 16 percent THC potency is pretty scary considering mental health, addiction, and brain development issues, at least we have some research on it. Since commercially produced weed is typically far above 16 percent, our society is effectively telling people that it’s okay and The Industry is directly telling them it’s okay. This should stop.
Solving the issue would mean labs in the state need to agree on a uniform way to test (actually much harder than you may think) and then the manufacturers/retailers need to submit enough samples to prove that they are in compliance. Sending a sample or two a year isn’t enough. It needs to be a true representative sample that is tested, and those samples need to be both predictably regular and randomized. To this The Industry will say that it would be cost-restrictive and take too much time. I answer that with “Okay, if you want to sell it, you need to be responsible for it.” If we need to spend more money to make sure we aren’t getting miles ahead of the science I’m okay with that. They will also say that it would essentially kill the concentrates industry. I also answer okay to that one. Concentrates are a synthetic drug that don’t have a place in society, I’m good with that market going away; less mess for the rest of us to clean up.
It would be simple to make sure that the 16 percent potency requirement is met. Institute progressive fines for violators with real teeth for enforcing them. The first fine should sting and make the offender realize they need to be more careful. And, just like in criminal justice, if violations continue the penalty should increase until it is a poor risk/rewards equation to continue violating the law. Limiting potency reduces harm.
Packaging
Everything that contains THC should come in opaque childproof packaging instead of kid-friendly advertising on easy-to-access packages. This idea is so simple that I won’t waste much ink on it. We do it with everything else that can be harmful to children, why not weed? That question was rhetorical; the answer is of course The Lobby.
Driving
Here’s a huge public safety issue! Testing someone for THC impairment is complex. At this point it is almost impossible. The science just isn’t there, or even close to being there. We can see when somebody recently consumed but THC metabolizes unpredictably, unlike alcohol. Think about the incentive out there for someone to develop a breathalyzer-style test to show impairment; we’re talking potentially several billion dollars. Every law enforcement agency in the developed world would buy as many as you could make—and their checks clear! If it were easy to test for impairment somebody would be very, very rich right now. Some of the smart people I know tell me that the issue is so complex that it won’t be solved in my lifetime and that makes it a huge issue. If we are going to create space for growing numbers of people to get high on THC, then the driving thing needs to be figured out immediately. I have a solution for this one as well, but I warn you, if you consume THC you aren’t going to like it!
Driving isn’t a right, but those who are on the roads (bikes and pedestrians included) do have a right to expect that those around them are not impaired. If a person chooses to consume THC, that choice might have to cost them something very real, in this case, their driving privileges.
Since THC can stay in your system for a long time, over twenty-eight days, obviously not everyone with THC in their bloodstream will be impaired, quite unlike alcohol. With that in mind, I say that the rights of people on the roads outweigh the privilege of smoking weed. If you have THC in your system you don’t get to drive. It’s harsh and not at all perfect but it’s a solution that puts public safety above intoxication. The legal limits and recommendations about how much THC can be in a driver’s system are silly and the numbers were basically assigned by people with little to no understanding of the complex science and chemistry involved. If you want to really understand this complex subject, listen to Courtney Popp, Washington State traffic safety resource prosecutor and legal advisor for the King County Sheriff’s Office present sometime. The bottom line is that in Colorado five nanograms—that is, one billionth of a gram—of THC per milliliter of blood is considered intoxicated.
There are, however, plenty examples of heavy users not being impaired with a higher THC count in their blood as well as people being tried and convicted of driving under the influence when their level was lower that the legal limit. One such case just played out in my neighborhood. About two miles from my house, twenty-year-old Kyle Couch ran over an eight-year-old girl out for a bike ride with her dad. Despite his car window being down and the father yelling at him to stop, he was too out of it to notice and hit and killed the little girl. He later said, “I thought I ran over a curb.” Kyle failed a roadside sobriety test and the drug recognition expert (DRE), a specially trained police officer, cited marijuana intoxication. Although he was clearly intoxicated on THC, stoned enough to mistake a little girl for a curb, his blood only tested at 1.5 ng/ml, way below the set “limit.” He is being charged with DUI for marijuana, no other substances.
When someone develops a way to test for roadside impairment from THC I will take this all back, and I hope I get invited out on their boat someday; I’m sure it will be a nice one.
So weed smokers of the world unite! Get Richard Branson (DPA Board remember) to fund the research and development, and find a way that you can prove to the rest of us who use roads to drive our kids to school on, as well as bike and walk on, that you are sober. Invent a weed breathalyzer device and I will be the first in line to cheer the accomplishment. With the privilege comes the responsibility.
Why We Get High
We are hardwired to do things that make us feel better in the moment. I don’t have the patience or the credentials to get into the brain science here, but we all know it’s true. Drugs make us feel better for a minute. They block out pain and some of them make us feel light and put a smile on our faces. The issue is when we get too used to that feeling and chase it above other more important things. That’s why drugs cause harm. Unfortunately, by the time we realize that they are too important we can have a hard time stopping because we have grown so used to this form of pleasure. We keep getting high then because we often forget how, or are not able to, feel good without a substance.
We get high to feel better, to forget, to fit in; all of the things I mentioned a few chapters ago. Some of us even get high to make connecting with others easier, and that connection or perceived connection is a big deal even though it centers around an intoxicant. Some of us have had such a tough go of it that we can’t imagine being in a room with other people sober; it’s too scary. We crave that connection but don’t think we can get it without some chemical aid. People bond over drugs in many ways and use them to feel that bond. In recovery, we say that we need to change people and places; the people part of that can be terrifying.
I remember this fear when I got sober. What would I do? Who would I talk to? How would I connect with others? The reality that my connections were dependent on sharing drugs didn’t hit for a while, and when it did the hollowness of that connection was hard to ignore. When we have to form bonds around other things besides drugs, our relationships take on a much more real and risky component. We get to know one another on a level much deeper than a shared affinity for a particular mind-altering substance. While that can be scary at first, it is beautiful and fulfilling once the fear starts to bed down. We get high in the hopes of feeling good and connecting, but in reality we condition our bodies to feel good only when high and to connect around shallow things that do not, or should not, define who we are as people.
How We Could Change It All.
This Isn’t About Weed
I’ve saved this section, writing it last before shipping this thing out. I anticipated this being the best part to write and have been, as Dr. M. Scott Peck instructs in The Road Less Traveled, “delaying the gratification” of writing it.
I’m so damn tired of talking about weed, but this isn’t really about weed. I think people deal with pain, hardship, loneliness, disappointment, boredom, stress, fear, anger, etc. in different ways. Mankind has always dealt with these things, to some degree, by numbing with intoxicants. But I can’t help but feel like things are changing. It appears to me that we are relying more and more on things that change our mood and get us out of ourselves and distance us from reality. That is what it’s really about, I think.
Pain, hardship, anger, etc., are all part of life. They are not fun but oftentimes they are the parts from which we grow the most. This isn’t an autobiography so I’m not getting into details, but I know a thing or two about pain. Physical, mental, emotional, long-term, acute, and so on. Pain isn’t something to enjoy but it also isn’t something to ignore or run away from. Pain can also protect us from more dangerous things. If we put our hand on a hot stove but couldn’t feel the pain, we would still get burned and could die from the infection.
Life isn’t about masking pain/uncomfortable feelings at all costs; the idea of that kind of vanilla existence scares me. For me, living has been about trying to find a way to integrate those things into who I am and into my daily life. By attempting to live “life on life’s terms,” I get to be right where I am, which means I need to find ways to work through the things that aren’t comfortable in the moment. The beauty in doing this is getting to know oneself and those around us in ways that elude us when we choose to escape into intoxication.
People have always gotten wasted and they always will, no matter the laws. What I am observing are higher numbers of people getting intoxicated to escape; more than I believe have tried at any point in our history. Maybe it’s a case of having more access to more intoxicants than ever before. Whatever the causes, my real fear is that if we keep going down this path of accepting intoxication as the norm rather than the exception, fewer people will grow to their fullest, individually and as a society. I have a friend who likes to say that character is more important than comfort. I like that one because in a world where comfort becomes more important than character, what can we expect?
I know I can get a little preachy but I am obviously very impassioned. While I can be brash and crass at times I do not intend anything I’ve said to be rude or thoughtless. I respect the right that everyone has to make their own decisions and to lead the life that is set before them, within reason, remembering that we are all in this together, to an extent. However, I do not apologize for my words directly opposing The Industry and Lobby. You guys embody what is wrong with America, in my eyes, and I would like to see your energy and intellect put to better uses, for building up rather than tearing down. You have deep resources and much to offer; you can do more than figure out ways for more people to get higher. Just consider that.
To those of you in situations similar to what mine was, I’m cheering and praying for you. Ask for help and don’t stop until you get it. You are worth it and there is a rich and full life out there that your most ambitious dreams fall short of. I know this from experience.