Yesterday, after news outlets
reported that the Colorado Department of Public Health and the
Environment (CDPHE) had recommended a ban on all but a few forms of
marijuana edibles, CDHPE officials quickly
retreated from the idea. “If the horse wasn’t already out of
the barn,” said the department’s deputy executive director, “I
think that would be a nice proposal for us to put on the table.”
But why exactly was the horse out of the barn?
As you might expect, the recommendation drew strong objections
from Colorado’s marijuana industry. But it also was criticized by
Gov. John Hickenlooper,
no fan of legalization, whose marijuana policy coordinator,
Andrew Freedman, made a couple of
cogent points in a written statement:
Other experts will no doubt argue that restricting edibles
betrays the will of the people in passing Amendment 64. Still
others will argue that restrictions have the potential to create a
dangerous and unregulated black market for edibles.
Amendment 64, the 2012 initiative that legalized marijuana for
recreational use in Colorado, is now part of the state
constitution, and it clearly envisions a market in which various
marijuana-infused foods and beverages are available to adult
consumers. It allows state-licensed businesses to make and sell
“marijuana products,” defined as concentrates and “products that
are comprised of marijuana and other ingredients and are intended
for use or consumption, such as, but not limited to, edible
products, ointments, and tinctures.” The amendment also refers to
“food” and “drink” that contains marijuana. Furthermore, voters’
intent should be understood in the context of Colorado’s experience
with medical marijuana, which for years had included a wide variety
of edibles sold to patients by state-legal dispensaries. “When
Amendment 64 came up,”
notes state Rep. Jonathan Singer (D-Longmont), “we talked
about legalizing marijuana, including edibles.”
The CDHPE, by contrast, had recommended allowing only tinctures
and hard candies or lozenges. “To allow the production of retail
marijuana edibles that are naturally attractive to children is
counter to the Amendment 64 requirement to prevent the marketing of
marijuana products to children,” it argued.
“The intent of the Amendment and subsequent laws and rules was to
decriminalize the use of retail marijuana, not to encourage market
expansion within the marijuana edibles industry that subsequently
create potential consumer confusion or mixed messages to
children….By limiting the scope of allowable retail marijuana
edibles to products that are not easily confused with ubiquitous
food products, this recommendation creates a more defensible and
transparent regulatory framework.”
The CDHPE’s suggestions are part of the consultation process in
which the Colorado Department of Revenue’s
Marijuana Enforcement Division (MED) is engaging prior to
issuing new edible regulations next year. State legislators have
charged the MED with writing “rules requiring that edible
retail marijuana products be clearly identifiable, when
practicable, with a standard symbol indicating that [the product]
contains marijuana and is not for consumption by children.” Hence
the CDPHE’s preference for hard candies and lozenges, which could
be stamped in a way that would make them look different from
unspiked versions of the same products even when they are removed
from their original packaging.
Other ideas that have been floated include dyeing marijuana
products a distinctive color and imprinting a symbol on the icing
of baked goods. But the legislative mandate does not specifically
require that the products themselves be marked (although an
earlier version of the bill imagined recommendations for how
“edible retail marijuana products can be shaped, stamped, colored
or otherwise marked to indicate that [they contain] marijuana”).
Furthermore, the new regulations are contingent on what is
“practicable,” and the requirements that legislators or regulators
can impose on marijuana products are in any case limited by
Amendment 64.
The governor’s other point is also worth highlighting: Despite
their drawbacks,
edibles have proven very popular in Colorado. If the state decided
to ban almost all of them, the black market surely would step in to
meet the demand, meaning that no regulations at all would
apply.
KUSA, the NBC station in Denver,
noted that the ban proposal “comes just days after Denver
Police warned parents that trick-or-treaters should be careful
about their children eating pot candy given out by strangers.” More
on that trumped-up threat
here.
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