Pot Potency-Limiting Amendment 139 Is Dead

Additional images and more below.
Additional images and more below.
Thinkstock

Update: The proponents of Amendment 139, which would have limited the THC potency of marijuana products to 16 percent and put packaging and labeling rules into the Colorado Constitution (see our previous coverage below), have withdrawn the measure.

Among those celebrating this move is the Cannabis Business Alliance, which maintains that A139 "would have crippled Colorado’s fledging cannabis industry and pushed supply to the black market, causing a loss in jobs and tax revenue."

Continue to see the complete CBA statement, followed by our earlier report.

Cannabis Business Alliance statement about Amendment 139's withdrawal

“In 2012, Colorado residents showed their support of the legal Cannabis market by overwhelmingly approving Amendment 64, which requires the state to regulate the Cannabis Industry like alcohol. Proponents of Initiative 139 who were attempting to add a purity limit of 16 percent to the ballot in November were extremely misguided. The restrictions on Cannabis purity would have been similar to limiting the alcohol content by volume on beer, wine and liquor. It would be the equivalent of only having 3.2 beer available. The industry is thankful that common sense has prevailed,” noted Cannabis Business Alliance Executive Director Mark Slaugh.

Initiative 139, a constitutional amendment that would have forced the Colorado Legislature to set a limit of 16 percent or less THC in any Cannabis product sold at a state-licensed retail store, was a poorly written amendment aimed to deceive voters who just approved adult-use Cannabis sales in Colorado in 2012. This amendment would have dramatically reduced access to life altering medicine for patients including veterans suffering from PTSD and children with debilitating conditions such as epilepsy and spastic quadriplegic cerebral palsy. Bearing in mind roughly 80 percent of the state’s lawfully retailed cannabis products would be deemed illegal, Initiative 139 would have forced most cannabis companies to shut down overnight.

A recent report from the Colorado Department of Public Health and Environment found that marijuana consumption by Colorado high school students has dipped since the state first permitted recreational Cannabis use by adults. The biannual poll also showed the percentage of high school students consuming Cannabis is smaller than the national average among teens. Colorado has experienced a significant economic boost since the legalization of Cannabis, accounting for sizable job growth and tax income for Colorado.

Original post, 6:27 a.m. July 5: Amendment 139, a proposal that's seeking a spot on the November ballot, is getting attention primarily for a section that would limit the potency of marijuana products to 16 percent THC — a reduction for a huge number of currently available items.

But that's not all the measure would do. A139, which is on view below, would also put childproof-packaging regulations into the Colorado Constitution along with labeling rules that could require warnings about mood swings, impaired thinking, possible addiction and even temporary paranoia.

The grab-bag nature of these provisions has led to assorted fights, including a court challenge, that were waged behind the scenes. But 139 backer Frank McNulty, once Colorado's Speaker of the House, is confident that the amendment will eventually reach and win favor with voters — and perhaps even some of those in the cannabis community.

"I would hope that the proponents of the commercialized marijuana industry in Colorado would agree that reasonable controls on the sale of marijuana are good things for our community, for our state and for our economy," McNulty says.

Frank McNulty during his time as a Colorado representative.
Frank McNulty during his time as a Colorado representative.

Early signs about possible industry cooperation aren't good, however. Mason Tvert, spokesman for the Marijuana Policy Project, calls Amendment 139 "a poorly written measure that's going to have the opposite effect of what its proponents intended. It's going to be damaging to public health and safety."

McNulty says the organization behind Amendment 139 has been dubbed Healthy Colorado and identifies himself simply as "a supporter" of the proposal, which opens with a section about packaging meant to keep kids from getting to products that are only legal for use by adults 21 and older. It reads in part:

(a) “CHILD-RESISTANT” MEANS PACKAGING THAT IS:

(I) DESIGNED OR CONSTRUCTED TO BE SIGNIFICANTLY DIFFICULT FOR CHILDREN UNDER FIVE YEARS OF AGE TO OPEN AND NOT DIFFICULT FOR NORMAL ADULTS TO USE PROPERLY AS DEFINED BY 16 C.F.R. 1700.20 (1995);

(II) OPAQUE SO THAT THE PACKAGING DOES NOT ALLOW THE PRODUCT TO BE SEEN WITHOUT OPENING THE PACKAGING MATERIAL; AND,

(III) RESEALABLE FOR ANY PRODUCT.

Rules like these are already in place, but, McNulty says, "They're in regulations only, and regulations can be changed fairly easily. They're not even statute. So the child-resistant piece tracks alongside what's currently in regulation, but by including it in this initiative, we hope to ensure that child-resistant packaging will be the standard from here on out."

The same theory is being applied to labeling — but the wording in the amendment is much harsher than that found in the following example from the state's Marijuana Enforcement Division:

Pot Potency-Limiting Amendment 139 Is Dead (3)
Marijuana Enforcement Division

A139 would go well beyond these warnings, requiring "labeling controls" about "identified health risks, including, but not limited to:"

(i) INCREASED CHANCE OF A HARMFUL REACTION DUE TO HIGHER TETRAHYDROCANNABINOL LEVELS;

(ii) BIRTH DEFECTS AND REDUCED BRAIN DEVELOPMENT;

(iii) INCREASED RISK OF BRAIN AND BEHAVIORAL PROBLEMS IN BABIES;

(iv) BREATHING PROBLEMS;

(v) PERMANENT LOSS OF BRAIN ABILITIES;

(vi) ALTERED SENSES AND MOOD SWINGS;

(vii) IMPAIRED BODY MOVEMENT AND IMPAIRED THINKING;

(viii) DEPRESSION, ANXIETY, AND TEMPORARY PARANOIA;

(ix) POTENTIAL FOR LONG-TERM ADDICTION.

In Tvert's view, this language is absurd.

"It's going to put fake science or unscientific claims into Colorado state laws," he maintains. "These claims are utterly undocumented and fraught with errors."

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Not so, McNulty argues. "The health warnings are all taken from federal government resources," he stresses, "and they insure that people will get important warnings about the health risks of using these products."

As for potency, Amendment 139 pretty much deals with the issue in a single sentence: "The potency of marijuana and marijuana products will be controlled with an upward potency limit that does not exceed 16 percent."

At first blush, this provision would be the equivalent of saying that beer is fine from here on out, but all hard liquor or high-alcohol-content wines are illegal. McNulty doesn't see it that way, though.

"Controlling the potency of these products is a very important piece of the initiative's public-safety aspect," he says. "I understand that folks within the recreational marijuana business want to have the wild, wild west here when it comes to products they can make available. But it's not safe for our kids or our communities. They shouldn't be allowed to put extremely dangerous products on their shelves."

Tvert's take? "This is going to force marijuana concentrates and infused products back into the underground market. It's going to steer consumers away from using vaporizers and back toward smoking instead, it's going to inspire people to smoke more to get the desired effect, and it's going to reincentivize potentially dangerous home-extraction methods.

Mason Tvert.
Mason Tvert.
File photo via MSNBC

"There have been efforts to prevent dangerous extraction methods from taking place in neighborhoods and people's homes, and this is going to result in those efforts popping back up. And it's hard to imagine why this group wants untrained people in neighborhoods to be trying to make these products instead of licensed professionals in industrial facilities."

McNulty sees such claims as baseless.

"Guys like Mason Tvert talk about the black market, but we have example after example across the state where the black market is worse because dealers hide behind legal marijuana dealers," he says. Legalization supporters "promised us there'd be relief from the black market, but what Colorado has experienced is the exact opposite. The members of law enforcement I've spoken to have all said the black market has gotten worse.

"Pueblo is the most blatant example. They have international drug cartels moving in, Cubans and Russians who are taking advantage of the fact that they have a no-holds-barred commercialized marijuana industry down there that the black market can hide behind. I don't think there are facts anywhere that can prove what [Tvert] has to say. He just consistently makes this stuff up as he goes along."

Whether this debate will take place on a larger scale awaits action by the Colorado Secretary of State — and that process has been a bumpy one. On April 21, title language was approved. But days later, opponents challenged the wording, saying that it violated the state's "single subject rule" by addressing a series of issues instead of just one. On May 20, McNulty and company filed their argument with the Colorado Supreme Court, with an answer brief from petitioners Dean C. Heizer II and Gregory S. Kayne dropping on June 3. However, McNulty says, "We just had the Supreme Court reject the appeals. So they approved the title board action, and the next piece is having petitions approved by the Secretary of State's Office and then putting them on the streets for signature."

According to McNulty, approximately 98,000 valid signatures will be necessary for Amendment 139 to be approved, and supporters plan to use both volunteers and paid signature collectors to make sure they hit the mark.

"Hopefully some people in the marijuana industry will circulate some petitions, too," McNulty says.

Don't expect to see Tvert among them. In his view, "This is going to have a detrimental effect on public health and safety if they're successful."

Continue to read Amendment 139.



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