Colorado police say they face a troubling predicament in determining whether medical marijuana grows are legal or illegal.
And they asked the Colorado General Assembly to address that issue Tuesday (Jan. 20) when the state’s medical marijuana code was taken up for sunset review. The legislature is expected to make several changes to the existing law.
For police, the most important new recommendation would penalize primary caregivers for failing to register their marijuana grow operations. Primary caregivers are individuals who do not operate medical marijuana stores, but provide marijuana and at least one health-related service for authorized patients.
In general, caregivers are allowed to grow six plants per patient, but can grow more with a doctor’s written orders. The current law states that all caregivers must register their grow sites with the Department of Revenue.
The problem for police, however, is that only about 5 percent of Colorado’s nearly 3,000 caregivers actually tell the state where they grow their patients’ cannabis, according to a recent report from the Department of Regulatory Agencies (DORA).
“It’s outrageous how this has morphed past what it was meant to be,” said Chief John Jackson of the Greenwood Village Police Department, and the president of the Colorado Association of Chiefs of Police. Jackson participated in recommending changes to the medical marijuana code.
Without a clear and available registration of grow facilities, police are left with potentially an enormous gray market of marijuana. The proposed solution before the legislature would criminalize the failure to register any grow facility.
“This isn’t a new requirement,” said Brian Tobias, report author and DORA senior policy analyst. “The caregivers have always been required to register their cultivation sites, this would just give some teeth to enforcement.”
In a survey of registered caregivers administered by DORA in August, 13 percent of those who failed to register their grow sites said they were not aware of the requirement, and nearly 40 percent said that they simply did not want the government to know about the cultivation.
“We don’t necessarily know what law enforcement is going to use that information for – would it be for illegal searches? Would they use it for harassment?” said Rachel Gillette, the executive director of the Colorado chapter of the National Organization to Reform Marijuana Laws (NORML). “We hope not, but we can’t be sure right now.”
And marijuana industry advocates are wary of creating new crimes in a legal market.
“Being a caregiver and being a patient is something that I believe is protected under the Colorado constitution so we should presume that people are engaged in lawful activity,” Gillette said.
Jackson said public health and safety are also important issues in “balancing these constitutional rights.”
Medical patients who rely on their caregivers hope to protect their rights without criminal penalties, said Teri Robnett, the executive director of the Cannabis Patients Alliance. She said most caregivers and patients are operating above the law, and would support an incentives program for registering grows rather than a penalty.
Robnett also participated in the medical marijuana code review and suggested that one incentive for registering would be to offer caregivers access to product testing.
“Right now, testing is mandated for the recreational industry but not yet for medical,” Robnett said. “It should be the other way around.”
Testing is another of the 15 recommendations made by the DORA review. While testing is currently mandated for recreational marijuana, caregivers are actually not allowed access to licensed test facilities in Colorado. Neither medical nor recreational products are currently tested for pesticides, herbicides, fungicides, molds, yeast or spider mites, among other potentially dangerous contaminants.
This has been a problem for Colorado, which is still operating working groups to decide which pesticides to test. As of now, the state isn’t testing for contaminants. Meanwhile, the state of Washington has tested products for months.
In a recent inquiry, the Washington Liquor Control Board, which regulates the sales of recreational marijuana in that state, found that about 13 percent of marijuana products failed contaminant tests.
As of now, no records are available for Colorado’s medical marijuana. The proposed amendment to the code that would require testing is generally popular.
Other recommendations included in the DORA report would ban marijuana infused product manufacturers from using trademarked products, like brand-named candies, in an effort to protect consumers and children.
Advocates also hope to make the medical code more closely aligned with the recreational marijuana code in terms of licensing requirements, financial backing, hours of operation, product tracking, destruction of excess product and wholesale transactions.
“I think that 99 percent of people want to comply with the law, but the law has not been entirely clear,” said NORML’s Gillette. “But the bottom line should be in protecting a medical marijuana patient’s access to quality product that is affordable.”
The Colorado Senate Finance Committee was first to hear the recommendations, including extending the medical code until 2019. The committee voted 5-0 to introduce legislation continuing the law, according to a Tweet from Legislative Council.
Full list of recommendations available here.