Still a high interest in modifying pot regs

Banning ‘edibles’ and caps on potency could be fodder for bills
The Colorado Statesman

Even as state regulators are first implementing a new marijuana marketplace that took a year to craft, a Republican lawmaker is planning legislation for later in the session that could go as far as to ban cannabis-infused products and concentrates, while setting potency caps.

Rep. Frank McNulty, R-Highlands Ranch, has pulled a bill title related to marijuana, which he says will become more specific when he is ready to introduce a measure.

He is still working with stakeholders to come up with a proposal, but he says everything remains on the table, including banning so-called “edibles,” as well as prohibiting concentrates and imposing a cap on marijuana potency levels.

McNulty said he is working with Smart Colorado on the bill, a group of concerned mothers that has opposed legalization in Colorado. Smart Colorado watched in fury last year as lawmakers backed a regulatory model for selling retail marijuana to adults 21 years of age and older.

Rep. Frank McNulty, R-Highlands Ranch

Amendment 64 in 2012 legalized the possession of marijuana up to one ounce and the ability to grow up to six plants. It also permitted industrial hemp. But the initiative left the retail regulatory model up to state lawmakers and local governments.

McNulty was concerned from the beginning, fearful that the legislature was pushing through a regulatory scheme that was ripe for abuse and did little to protect children.

He points to a recent report by the Children’s Hospital Colorado, in which doctors reported seeing more kids in the emergency room after accidentally ingesting marijuana.

The report looked at ER visits for kids before the proliferation of medical marijuana and after medical marijuana centers started to expand in 2009. From 2005 through 2009, there were no marijuana-related visits among 790 patients, according to the Children’s Hospital Colorado report. Between 2009-11, 14 of 588 children were seen for marijuana exposure.

Some may look at 14 incidents as trivial, compared to the rise in prescription medication use among adults that has led to more poisonings among children, according to a recent study published by the journal Pediatrics. Between 2001 and 2008, pediatric emergency room visits due to prescription exposures increased 30 percent, while the rate of hospitalizations increased 36 percent.

But McNulty is focused on marijuana, suggesting that one child poisoned by exposure is one child too many. If he had his way, he would ban edibles and concentrates and set potency caps to make sure children aren’t in danger. He does not believe the legislature went far enough last year.

“Our hope was to be able to achieve bipartisan consensus around legislation to protect Colorado’s kids against the negative effects of marijuana. We weren’t able to do that,” McNulty said of last session.

All three of the major marijuana regulatory bills received bipartisan support last year. But McNulty believes there could have been greater consensus.

“I think now we’re at the point where we’re trying to piece together what we can to best protect Colorado’s kids in the absence of sort of that broader bipartisan framework,” McNulty continued.

“There are very real examples where marijuana has hurt children, and examples since the state of Colorado voted to legalize marijuana,” he added. “My goal is to protect kids, and I think that should be the goal and focus of this general assembly. Now that marijuana is legal in the state of Colorado, what are we going to do to make sure that children are not hurt because of it?”

In the rules and regulations backed by the legislature last year, lawmakers restricted the marketing abilities of manufacturers and retailers, limiting exposure to children. Another rule requires childproof containers.

But McNulty remains concerned, opining, “The rules that we have now make this dangerous product too easily available in our schools, and that’s where the people who protect us are coming from on this, and I share their concerns.”

McNulty said his measure would not be about providing a win for Smart Colorado, which struck out last year on several marijuana policy issues. He said it’s about protecting kids by fighting a well-funded marijuana lobby.

“They had more cash flowing into this Capitol than any industry last year…” declared McNulty. “So, it’s hard for those of us who simply want to protect kids to go up against that big wall of money that they have. But my hope is that we can find some common ground with the big money marijuana industry advocates to protect kids and keep drugs out of our schools.”

A spokesman for Smart Colorado did not return request for comment left by The Colorado Statesman, nor did two of the group’s registered lobbyists, Mike Feeley and Melissa Kuipers, both with the Denver law firm of Brownstein Hyatt Farber Schreck.

Beyond the edibles discussion, McNulty is also concerned about the proliferation of concentrates, which refers to an extraction process that uses a solvent, like butane, to eliminate all plant matter, leaving users with a product that is extremely high in potency. Examples include oil and earwax, among others.

Videos circulating of users having seizures from concentrates have put legalization opponents on high alert. And there are severe risks in making concentrates, including explosions that could put residential neighborhoods in fire danger if people make the products at home without following safety protocols.

“When you look at concentrates, they could absolutely be deadly to children,” said McNulty. “When you look at potency and concentrates together, we could have dead kids in our schools, on our playgrounds, because they have no idea what’s in that vial and how potent it is.”

The marijuana industry itself has been split on the topic of concentrates. Some feel that the risks associated with such products could give the industry a black eye when they are trying to demonstrate responsibility.

Others, however, point out that legalizing concentrates is about safety, suggesting that by offering it on the retail level, children are less likely to get their hands on it and people will be less inclined to cook it at home.

With the regulatory model only just kicking into high gear after retail stores opened on Jan. 1, it may be difficult to convince lawmakers that now is the time to ban edibles and concentrates, or even set potency limits. McNulty acknowledges that he may have to come down on his expectations.

“I’m open to making moves that send us in the direction of protecting kids, even if we can’t do 100 percent at first,” he said.

Industry responds

Those in the industry who would be affected are worried about McNulty’s new angle. Joe Hodas, spokesman for Denver-based Dixie Elixirs and Edibles, one of the state’s largest manufacturers of marijuana-infused drinks and edibles, said manufacturers are already taking steps to ensure that children do not gain access.

He said before drastic steps are taken, lawmakers should wait to see how implementation of the marketplace unfolds. Until then, there is not enough data to support a legislative push, said Hodas.

“We want to ensure that those regulations are fair and well researched and grounded in fact and need,” he explained.

“This is a product that is intended for adult use. It is not intended for anyone under the age of 21,” Hodas added. “The state has put into place very good regulations around things like marketing and packaging… So, it’s absolutely important that this does not get in the hands of children. The industry as a whole is doing everything in our power and abiding by the state’s requests on those regulations to ensure that that doesn’t happen.”

Hodas believes there should be more research before connecting marijuana poisonings among children with legalization. He also believes that there is a personal responsibility for parents that should be highlighted.

“There is a certain amount of personal responsibility that comes with use of these products and living in a state where it has been legalized,” he said. “It’s important that people are cognizant of the product, particularly around children. But I don’t know that banning edibles altogether is the answer. In fact, I know it’s not the answer.”

Instead, Hodas believes it is up to the state and industry to follow regulations that keep the products away from children.

“We’re not putting clowns or things that are maybe going to be appealing visually to a child in our packaging,” he explained. “Equally important, we are following the regulations that the state set forth…”

A spokesman for Denver-based O.PenVAPE, one of the largest manufacturers of oil vaporizer pens which can be used with marijuana, declined to comment until a bill is actually introduced, adding only that, “Our concentrates are the safest.”

Christian Sederberg, one of the attorneys who wrote Amendment 64, said legalization advocates are open to a compromise. He has already been having discussions with stakeholders. But he is wary about outright bans.

“There’s definitely going to be lines in the sand…” surmised Sederberg. “Certainly, wholesale bans of edible products or other things would be something that is a nonstarter.

“It’s a complicated issue, so we would need to gather a lot more information from those people who are in the business and… get a feel for what is reasonable and what is practical and what will work,” he added.

Sederberg believes the most logical solution is to continue working on regulating the products, rather than imposing sweeping prohibitions, which would force the products back underground.

“When there is a demand for any product, there is going to be a market for it, and the whole purpose of Amendment 64 was to create a regulated market for these things,” he said.

“We just have to figure out inside that regulated market what makes sense to address safety and what makes sense to address the legitimate concerns of those people that are responsible business owners,” Sederberg continued.

Rep. Dan Pabon, D-Denver, who spearheaded much of the legislative implementation initiative last year, said he is glad to hear that other lawmakers are taking up the regulatory cause, though he is skeptical of McNulty’s approach.

“Myself and a few others had to take this on full bore and we carried the water, and so now McNulty and others are coming a little late to the party,” said Pabon. “We welcome them and embrace them in their ideas, but some of their ideas don’t either comport with the wishes of the voters, or they need to do their homework and do their work to get their bills in a place where they actually do something to protect the public safety.”

He pointed to a measure introduced by Rep. Daniel Kagan, D-Cherry Hills Village, which would give retail marijuana stores the ability to confiscate a fraudulent identification. House Bill 1122 would also make selling marijuana to a person less than 21 years of age a misdemeanor, as well as create licensing penalties.

“That’s a great improvement,” said Pabon. “Frankly, I’d assume that the Department of Revenue would have issued rules to say that, but they didn’t.”

Pabon believes that it would be difficult to ban or limit certain marijuana products without also including medical in the discussion, which gets tricky because that conversation would impact patients’ rights. He suggests that banning certain marijuana products would encourage more users to abuse the medical marijuana registry.

“Even if you do something in recreational, the easy market response will be to just drive people into medical,” said Pabon. “So, if you were to put a potency cap on recreational marijuana, that might work for the out-of-staters, but everyone is just going to go to medical again…

“A better approach would be to look at the big picture, both medical and recreational, and make some bigger public policy decisions about those decisions,” he added.

Pabon also believes that more data should be collected before any more regulations are mandated by the legislature.

“It’s fair to say that if there are child protection issues related to edibles… we need to find out why that’s happening and is it related to the presence of edibles in our system, or is it because our child welfare laws need to be revamped, or do our child packaging laws need to change?

“To say we need to do something about edibles means nothing unless you are actually understanding what problems you are trying to solve,” Pabon concluded.

Peter@coloradostatesman.com