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COVER STORY | Caucus busters: Are House Democrats prepared to move in a new direction on cannabis?

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Rep. Yadira Caraveo is touting a marijuana reform bill that could bust her caucus, as they call it, at the Colorado statehouse.

The Democrat from Thornton isn't trying to be a wedge, but she's convinced that today's pot is way too powerful, and she's the only member of the House with a medical degree to back it up.

Caucus busters are those are the occasional pieces of legislation that defy assumptions about fealty to party. As one industry advocate put it, Caraveo lives on an island over pot — the issue typically unites rather than divides House Democrats, who hold the majority.

The latest version of a contentious bill aligns procedures for prescribing medical marijuana with other medications and, most divisively, puts a 15% cap on THC. The latest draft, released Feb. 9 with Monument Republican Sen. Paul Lundeen signed on as the Senate sponsor, also:

  • Allows the state’s marijuana enforcement division to have rulemaking authority over the serving sizes for all regulated marijuana products. Currently, the division, part of the Department of Revenue, regulates only serving sizes for edibles in the retail market.
  • Ends the use of vending machines in medical marijuana dispensaries.
  • Prohibits any marijuana dispensary, medical or retail, from selling marijuana that contains butane, propane or a “known human carcinogen.” All cigarette smoke, including from marijuana, has carcinogens.

An earlier draft of the proposal obtained by Westword cut wider and deeper into the industry's comfort zone, including a ban on some forms of advertising and a tracking program that would largely tie medical marijuana patients to one dispensary.

Caraveo told Colorado Politics the initial draft amounted to a wish list from advocacy groups such as Smart Colorado, which aims to highlight the risks marijuana poses to youth.

The latest draft of a bill from Rep. Yadira Caraveo, D-Thornton, seeking to among other things create a 15% cap on THC in marijuana products.

She expects the THC limit is “definitely going to move” over the course of discussions with stakeholders and industry leaders.

“My goal is not to eliminate the industry,” Caraveo said in an interview. “But there is a huge delta between studies that show anything over 15% is likely questionable and what is being sold right now. And so how do we get to a number that isn't just a completely arbitrary number is what I want to have discussion about.”

Industry stakeholders have complained that Caraveo put the bill together with Smart Colorado without involving them in the discussions.

Peter Marcus, spokesman for Terrapin Care Station, a Boulder-based national cannabis company, said industry members look forward to continued conversations with Caraveo over the bill. "Up until recently, there was no stakeholder involvement, so we were largely operating in the dark," he said. "We're glad that Rep. Caraveo has finally decided to engage with the cannabis industry on this subject."

A lid on potency

Caraveo’s bill is something of a revival of efforts dating back to 2016 by anti-marijuana advocates such as Smart Colorado*. That year, in a House Finance Committee hearing on a bill to renew regulations on retail marijuana, Rep. Kathleen Conti, R-Littleton, advanced an amendment to limit THC potency to 15%, but it failed 5-6.

When the bill got to the House floor, she tried to amend the bill again, joined by Rep. (and now Speaker of the House) Alec Garnett, D-Denver. The potency cap proposed in a floor amendment was 75%, and while it didn’t succeed, Garnett told Colorado Politics that it was an opportunity to educate the membership on concentrates.

Liggett Group, which has put more than $3.5 million into fighting Proposition EE, on Thursday filed a lawsuit in federal court against the state, alleging that the General Assembly's legislation calling for higher minimum prices on certain kinds of cigarettes was unconstitutional.

“I've nicknamed it the Mike Tyson: you take one hit and you're knocked out and you're drooling from the mouth,”  Garnett said of concentrates in a floor speech urging his colleagues to support the amendment. “I would love to hear an argument why we need a product on the market on the recreational side above 75%. It doesn't make sense.”

Failing at the state Capitol, Parents Opposed to Pot tried their hand at a ballot measure with a 16% THC cap, but withdrew it early on in the process, claiming “the marijuana industry has made it too expensive to move forward.”

Caraveo’s bill is also part of a national movement, largely focused on the THC potency. But that effort has largely fallen flat.

Perhaps the most successful effort to legislate in a THC potency cap came in Arizona last year. The state House passed a 2% potency limit on medical marijuana, but a Senate committee killed the bill.

Florida also tried and failed on a 10% limit last year, slipping an amendment into health care legislation that got little discussion before a 79-31 vote. Cap opponents in the Sunshine State argued a cap interfered with the patient-doctor relationship. A Republican senator characterized as a cannabis supporter authored a successful amendment to strip it out of the original bill. 

In Washington state, a bipartisan coalition last year brought forward a 10% limit that never got out of committee. 

But Henny Lasley, Smart Colorado’s executive director, pointed to legislative success in capping THC potency in Vermont as a good sign for Caraveo’s bill. That limit was instituted as part of the state’s initial legalization of marijuana last year and set caps at 30% THC for flower and 60% for concentrates.

Lasley worked with Caraveo to develop the bill and pegged its prospects before the General Assembly as “very good.”

“We believe that it is time for the legislature to look at the data that has come out that shows that there are regulatory gaps when it comes to the regulation of marijuana and keeping it out of the hands of our kids,” she said of the initial bill draft in an interview with Colorado Politics. “It's a broad bill to try to accomplish some of those exact things, to help fill those gaps to better protect kids.”

'Isn't about politics'

Asked about the potential for support within the House Democratic caucus, which has largely been united in backing the marijuana industry since voters approved Amendment 64 in 2012, Caraveo demurred.

“This isn't about politics, just like none of my other bills are about politics,” she said. “The caucus politics or the relationships in the House or the Senate are not part of this bill. It's really about what do we need to do to protect the health of Coloradans and children in particular.”

Potency will again be the most contentious issue for Caraveo, with Garnett at her side.

Garnett began hearing from parents in 2016 about problems with concentrates used in dabbing — that’s when someone inhales a concentrated form of cannabis oil, often ranging from 40% to 80% potency — and began to research the problem. What he found was an emerging market within the industry, how concentrates are made, their potency and how people were consuming them.

What concerned him was the potential for concentrates to get into the hands of kids, whose brains are not yet fully developed, Garnett said recently. That came out loud and clear in the 2016 marijuana sunset bill. He initially voted against the amendment that would set the THC potency at 15%, but stood with Conti on the failed floor amendment on its initial floor vote that set the potency much higher.

Garnett also backed a 2018 proposal to ask the Colorado Department of Public Health and Environment to study the effects of concentrates on the developing brain. But Garnett said the report, which came out last year, asked more questions than it answered.

Industry stakeholders maintain there's no evidence potency is the problem.

"Without any peer-reviewed evidence or research connecting cannabis potency to unintended consequences, it would be foolish to rush to policy," Marcus said.

A de facto ban

Mason Tvert is the father of Amendment 64, the voter-approved measure that legalized recreational marijuana in 2012. He now works for Vicente Sederberg, the Denver-based national law firm that focuses exclusively on cannabis.

Joey Bunch: "New battles are brewing over vaping, with nearly 40 deaths, more than 2,000 illnesses and a media debate that is swirling into a tornado of good intentions. Colorado has been spared, so far, and it hasn't been entirely good luck."

On the bill, Tvert said “it seems like a heavy-handed attempt to move the clock back to an era of prohibition. These are very silly proposals that suggest the author is very unfamiliar with how cannabis works.”

He likened the effort to asking NBA officials about curbing NFL end zone violations, or taking dance lessons from the mayor in “Footloose.”

Putting a cap on potency or serving sizes will not have the desired effect, Tvert told Colorado Politics.

“People can always choose to consume more or less,” he said.

The problem is that many people are still not familiar with how they will be affected by marijuana, and that requires education and sensible regulations, not rules that will outright ban the product.

Legislation that acts as a de facto ban will have consequences, he warned. That includes boosting the underground market.

“If you ban high potency, that creates a window for illegal actors to take advantage,” he said.

Marcus explained that since legalization, there's been no significant impact in terms of teen use.

"In fact, we've seen a slight decrease," Marcus* said. "Prohibiting certain cannabis products would force those items to the black market, where we know absolutely kids will die. Look no further than the recent underground vape crisis," he said. "Every single dangerous vape product in the crisis was linked to the black market. Regulation is what we need, not misguided policy that forces kids to underground drug dealers who use horrible additives that kill. We look forward to research- and evidence-based conversations around exploring cannabis responsibly.

"But if all we're talking about is empowering a black market that will prey upon our kids, then that is not a conversation we are willing to advance."

Federal mood

Caraveo’s bill lands at a time when the mood in Washington is shifting, most notably from former Majority Leader Sen. Mitch McConnell, R-Kentucky., who opposes pot, to the new pro-cannabis Majority Leader Sen. Chuck Schumer, D-New York.

Schumer supports descheduling marijuana, which would remove it from the Drug Enforcement Administration's Schedule 1 Controlled Substances list. That could create a world of possibilities, including allowing marijuana companies to open up standard bank accounts, a bill backed for eight consecutive years by U.S. Rep. Ed Perlmutter, a Democrat from Arvada.

The potency issue has already been before Congress this year.

In 2019, Perlmutter’s banking bill cleared the House then hit a snag with Sen. Mike Crapo, R-Idaho, who chaired the Senate Banking Committee, the measure’s next step. Crapo had his own ideas on the bill, including a 2% cap on THC potency, and imposing restrictions on edibles and vapes as a condition for banking services.

Crapo said in a 2019 statement that the banking act “does not address the high-level potency of marijuana, marketing tactics to children, lack of research on marijuana’s effects, and the need to prevent bad actors and cartels from using the banks to disguise ill-gotten cash to launder money into the financial system.”

Marcus said Caraveo is clearly on an island on this one.

"As the Democratic Party's national and state leadership embraces legalization, Rep. Caraveo is for some reason trying to make marijuana illegal again," he said. "As Chuck Schumer leads his party to a progressive agenda including reparations and equity for those left behind in a failed drug war, Rep. Caraveo is bucking the trend for a conservative agenda.

"In a state like Colorado, which is increasingly moving to the left, it's interesting that Rep. Caraveo believes that this sort of right-leaning policy is what her constituents are asking for. It's actually quite the opposite. With more than two-thirds of voters supporting legalization to address systemic racism through drug reform, it's clear that Rep. Caraveo is out of step with the direction of her party and the will of the people. We remain hopeful that through stakeholder involvement, we can come together to have a meaningful discussion, instead of just legislating in the dark."

Sidelined Singer

Former Rep. Jonathan Singer, D-Longmont, is watching the issue from the sideline, after championing marijuana regulations throughout his eight years in the House.

His name can be found on almost every major piece of marijuana legislation introduced since pot was fully legalized in 2012. He authored the 2013 law setting up marijuana taxes for retail sales. A 2014 law set up the regulatory structure for retail marijuana, and his 2015 legislation that did the same for medical marijuana. Singer also sponsored the laws on marijuana delivery, hospitality establishments that allow marijuana consumption, the Institute of Cannabis Research at Colorado State University-Pueblo, and measures on marijuana education and pesticide use.

Singer can’t lobby on the bill — he’s in the two-year timeout period for lobbying required by the state ethics law — but told Colorado Politics that running a bill on marijuana potency raises concerns around public health and fairness. “We don’t have potency limits on alcohol and that’s far more deadly,” Singer said.

He added that to run a bill that could affect kids who use medical marijuana for a whole host of conditions, including epilepsy and autism, also doesn’t make sense, especially during a pandemic. “Do you think those parents won’t show up at the Capitol and put their own health at risk? This is the wrong year for this.”

Singer wonders whether the bill would have come forward if he had still been there.

“It’s an issue we’ve hashed out many times," said Singer, who has a fondness for marijuana puns. "We have had these conversations around potency in the past and the General Assembly has tasked CDPHE to come up with regulations with the best science available.”

He’d prefer to see a simple color-coded system for potency on marijuana products. For example, if a tourist or novice goes to a dispensary, red means high intensity, yellow means medium, green means low.

“Something easy and simple,” Singer said.

But what’s challenging, he added, is that it’s not just THC potency that’s a factor; it’s also the other chemicals, such as CBD, which interacts with THC, and which can make them more or less intoxicating.

“A strict potency cap won’t accomplish what the proponents want,” the former legislator said.

The future of regulation

Tvert has been there as regulations have moved forward. Overall, he said, the state has made huge strides and really does serve as an example to other states on how to successfully regulate cannabis. There are still questions around hospitality establishments and marijuana delivery, but there’s progress being made on those fronts, too.

He says the process of developing the regulatory system will never end, pointing to the alcohol industry as the model and recent changes such as allowing Sunday sales or who gets to sell full-strength beer.

Research and statistics on the impact, or the lack thereof, of cannabis will also drive regulatory conversations, he explained. But the prohibition around cannabis will take a while for society to get over, he said.

There’s also the transition from older lawmakers to younger ones who haven’t grown up with cannabis prohibitions, he said.

“Most, if not all of Colorado’s elected officials grew up in a society where cannabis was illegal. In 10 years, a substantial number of lawmakers and other elected officials who were high school students (not so long ago) will have a different understanding of it, and they don’t view cannabis as being as scary as their parents or grandparents did.”

A lot of progress has been made in a short amount of time, Tvert added. He pointed out that he started working on recreational marijuana in 2005 and Amendment 64 was adopted in 2012. “That’s pretty quick,” he said. And since adult sales started, policy changes have been more gradual and less extreme.

Garnett is trying to mediate between Caraveo and the industry, although he supports a look at potency, at least for concentrates.

He saw the earlier draft, which he said did a lot more than narrowly focus on how to keep high-potency products from getting into the hands of underage kids. “I don’t know how the industry can want kids to get their hands on these products,” Garnett added.

Caraveo courts controversy

Caraveo has been going against the grain since she was elected to the legislature in 2018.

She immediately took on one of the most controversial bills in the 2019 session: Senate Bill 19-181, the highly contentious overhaul of the Colorado Oil and Gas Conservation Commission that changed its mission from promotion of oil and gas to protecting public health and safety.

That same year, she co-sponsored the law on human sexuality education taught in public schools, which again drew scores of opponents to the Capitol on multiple occasions.

In 2019, with Gov. Jared Polis backing her, she introduced a proposal to put a tax hike on tobacco and vaping products, but the measure never made it out of the General Assembly.

The next year, she was a prime sponsor on House Bill 20-1427 that asked voters last November to raise taxes on tobacco products, put a first-time tax on vaping products and set a fixed minimum price for cigarettes.

The marijuana bill is not the only one that’s likely to raise headlines for Caraveo in 2021.

She’s also plans to carry a bill to protect public health workers from doxxing, the public posting of personal information.

The legislation is in response to actions taken by Mark Hall, the head of the Parker Republicans, who in December posted the addresses of public health workers on a Facebook page in retaliation for COVID-19 restrictions. In the post, he wrote, “If you work for the state, CDPHE, Tri-County or other agencies, you are on the radar, at your homes and elsewhere. You want to be Anti-Americans, Patriots are going to show you the errors of your ways. We didn’t ask for this but you brought it on."

Hall took the post down and later apologized.

"People don't share addresses just out of curiosity to see where a public health official lives or see what their house looks like," she wrote on her Facebook page "... They do it with an implied threat: 'Let's go there, let's picket, let's disrupt their daily life, let's intimidate them and their family.’ ”

Working it out

Garnett encouraged both sides on the potency debate to work it out.

"It shouldn’t be anyone’s goal to eliminate the billion-dollar constitutionally-protected and statutorily-regulated industry that Colorado and the legislature has created over the last nine years," Garnett said. "A lot of jobs are tied to this industry, and obviously the general public has a pretty moderate relationship with marijuana products.

“You don’t want to come in and destroy the industry."

Caraveo said she does have meetings with industry stakeholders penciled into her calendar. In a perfect world, she said, those huddles would have happened before the initial draft of the bill was released. “But what happened instead was that somebody leaked it and then they published something and just kind of ran with it.”

Garnett dismisses the notion that the House Democratic caucus, now that Singer is gone, is swinging in a different direction on cannabis.

“No,” he said. “It’s an indication that the anecdotes [about concentrates and potency] coming from parents, teachers and medical professionals, are growing. This problem is real, the risks are high.”

What’s happened since 2016 has multiplied, Garnett said. “It’s important that the industry not just say this isn’t a problem, or that these products aren’t getting into the hands of our kiddos from the regulated market.

“Everyone needs to wake up and say this is a problem and we have to solve it.”

But where the line is — on potency — remains a mystery. “I can honestly say that 15%, then and now, would have more unintended consequences than would solve the problem we’re dealing with.”

The latest draft of a bill from Rep. Yadira Caraveo, D-Thornton, seeking to among other things create a 15% cap on THC in marijuana products.

This story has been updated to make two corrections: The anti-marijuana organization Smart Colorado was incorrectly identified in a previous version and a statement attributed to Mason Tvert was made by Peter Marcus.

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