The New Wild West: Colorado and Legalized Recreational Marijuana

by Courtenay W. Daum

Imagine a world where parents legally unwind with a joint instead of a glass of wine after a long day , weddings have marijuana bars to complement bars serving alcoholic beverages, and treats such as candy and cookies are forbidden to children not because of high sugar content but because they are laced with THC. You need not look far because this is the new state of affairs in Colorado which became the first state to legalize and launch recreational marijuana in 2014.

In Colorado, citizens may use the initiative process—petitions are circulated and if enough valid signatures are obtained the question is put to the voters of the state—to place policy and revenue issues on the ballot as an exercise in direct democracy. In November 2012, a majority of Colorado voters approved Amendment 64 on “Use and Regulation of Marijuana” and legalized the sale and consumption of recreational marijuana as well as industrial hemp within the state. Shortly thereafter, Governor John Hickenlooper convened a taskforce to draft regulations for the implementation and regulation of recreational marijuana sales and consumption, and on January 1, 2014 the first recreational stores opened to adults age 21 and older. While Amendment 64 decriminalized private possession of one ounce or less of marijuana by adults 21 years and older across the state, local governments retain discretion on allowing retail establishments within their borders as well as the authority to implement time, place, and manner restrictions resulting in variation across the state.

Despite the numerous regulations and revenue laws passed by the state in advance of the 2014 launch, new issues have presented themselves in the past nine months and additional government regulations have been devised in response to unforeseen developments. Not surprisingly, one of the biggest challenges associated with legalized recreational marijuana is securing the large amounts of cash coming into retail establishments. Due to the fact that federal laws criminalize marijuana, retailers in Colorado are struggling to find safe outlets for their revenue because banks subject to federal laws are unwilling to accept their money out of fear that they will be charged with violating federal laws including the RICO Act and prohibitions on money laundering and aiding suspicious and illegal activities. This has led to some bizarre developments including retailers laundering their money in Febreeze to remove the smell of marijuana in order to deposit the cash in their bank accounts. In response to these banking challenges, Colorado passed a law in June authorizing the establishment of marijuana banking cooperatives but the viability of this option is limited because the U.S. Federal Reserve is unlikely to sanction these entities. In a recent Forbes article, a leading marijuana retailer in Colorado was asked where the company keeps its money and he responded “We actually have strong banking relationships…[but w]e don’t talk about them. Asking someone about their banking is like asking them what they wear to bed at night. It’s an intensely personal question, even within the industry.” This evasive response reflects the complicated relationship among banks, the federal government and the marijuana industry. It is clear that some banks are allowing marijuana businesses to operate accounts but these relationships are incredibly covert given the risks. Yet, the lack of viable banking options creates practical and logistical problems for business owners as well as government efforts to regulate and tax marijuana sales not to mention the safety concerns associated with a multi-million dollar primarily cash industry that has limited access to financial institutions.

Another major issue and one that may have taken retailers and the government by surprise relates to the regulation and consumption of edible marijuana products. Due to the fact that edibles often take the form of baked goods and candies there have been numerous reports of children (and house pets) consuming the products unaware that these foods are laced with THC resulting in emergency room visits. Adults have struggled with edibles as well because when an individual eats or drinks marijuana products the onset of the drug is often delayed whereas smoking marijuana results in an immediate high. As a result of these differences, many individuals purchasing edibles consume an entire cookie or candy bar without realizing that one item contains multiple doses of THC. The results of edible overdoses may be catastrophic as exemplified by the death of a young man who leapt from the roof of a building in downtown Denver after consuming an entire marijuana cookie that contained approximately 6.5 servings of THC. In a now infamous editorial, New York Times columnist Maureen Dowd described her own experience overdosing on a marijuana candy bar on a visit to Denver as follows, “I lay curled up in a hallucinatory state for the next eight hours. I was thirsty but couldn’t move to get water. Or even turn off the lights. I was panting and paranoid, sure that when the room-service waiter knocked and I didn’t answer, he’d call the police and have me arrested for being unable to handle my candy.”

In response to the myriad problems resulting from the consumption of edibles, Colorado issued new regulations governing serving sizes and labeling requirements that will take effect in February 2015. In the meantime, distributors are taking steps to address these issues including producing “rookie” versions of edible products and beverages that contain minimal amounts of THC to ensure that individuals consuming an entire cookie, piece of chocolate or beverage will not become totally inebriated. In addition, many marijuana stores distribute guidelines on edible consumption and the industry has launched a public service campaign that spreads the motto “Low and Slow” encouraging individuals to begin with a low dosage (5 milligrams) and not rush to take another dose until they feel the effects of the prior dose.

Other issues include the challenges associated with prosecuting individuals charged with driving while high, public consumption of marijuana, weed tourism, and the movement of marijuana from Colorado to neighboring states where it is prohibited consistent with state and federal laws. In addition, the people of Colorado remain divided about the legal recreational marijuana industry. Both the Republican and Democratic candidates for Governor this election cycle have stated that they oppose recreational marijuana but according to a recent poll, fifty-five percent of Coloradans support it. Given that Amendment 64 was a popular initiative and passed directly by the voters, the only way to overturn the law within the state is to return the issue to the voters and ask a majority of them to repeal it. There are two ways to place a repeal question on the ballot in Colorado: 1) citizens’ initiative via petition and 2) a 2/3 vote of the state legislature. Of the two, the first is likely to be a more viable option because Colorado only requires approximately 86,000 valid signatures—a number equal to five percent of the votes cast in the previous election for Secretary of States—to get an initiative on the ballot. Yet, given continued popular support for legalized recreational marijuana it does not appear likely that a majority of voters would favor repealing Amendment 64 at this time. That being said, popular support for legal marijuana is moot if the federal government begins to enforce national prohibitions on marijuana in the state. While the Obama Administration has taken a hands-off approach to the situation in Colorado it remains to be seen if future executives will follow suit or if they will take legal action to force Colorado into compliance with federal law by challenging Amendment 64 in the federal courts. In the meantime, it is likely that the Colorado state government will continue to adapt existing regulations and create new ones in response to unforeseen developments, and the people of Colorado will continue to adjust to our new reality where discussions about the pros and cons of flowers versus edibles versus concentrates are overheard while waiting at the checkout line at the supermarket.

Courtenay W. Daum received her Ph.D. from Georgetown University and is an Associate Professor of Political Science at Colorado State University. Her research interests include organized interest mobilization and litigation in the courts, feminist legal theory, and gender and politics. Recent publications include: State of Change: Colorado Politics in the Twenty-first Century and “At the Intersection of Social Media and Rape Culture: How Facebook, Texting and Other Personal Communications Challenge the “Real” Rape Myth in the Criminal Justice System” (forthcoming in the Journal of Law, Technology & Policy). At CSU, Professor Daum teaches a variety of classes including American Constitutional Law and U.S. Civil Rights and Liberties.

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