Governor John Hickenlooper announced on June 7 that he would send a marijuana-related bill to the Colorado Secretary of State to become law without his signature. Why the lack of endorsement?
HB 1367 creates a state license allowing the cultivation, possession and transfer of marijuana for research purposes. It also gives licensed medical marijuana testing facilities the ability to test marijuana and infused products for those researchers, while giving the Marijuana Enforcement Division more rule-making authority. But there's one problem with the final version of the proposal.
As Hickenlooper explains in a letter sent to the Colorado House of Representatives, his office takes no issue with the bill's intent. However, one small but critical word change in amendments to sections 7 and 8 of the measure shortly before it was approved by the House will severely limit the MED's power to enforce contamination and potency rules. The word change? "Or" became "and," as seen in this highlighted text:
A STATE, LOCAL, OR MUNICIPAL AGENCY SHALL NOT EMPLOY OR USE THE RESULTS OF ANY TEST OF MEDICAL MARIJUANA OR MEDICAL MARIJUANA-INFUSED PRODUCTS CONDUCTED BY AN ANALYTICAL LABORATORY THAT IS NOT CERTIFIED PURSUANT TO THIS SUBSECTION (2.5)(a)(I) FOR THE PARTICULAR TESTING CATEGORY AND ACCREDITED TO THE INTERNATIONAL ORGANIZATION FOR STANDARDIZATION/INTERNATIONAL ELECTROTECHNICAL COMMISSION
17025:2005 STANDARD, OR ANY SUBSEQUENT SUPERSEDING STANDARD, IN THAT FIELD OF TESTING.
Because of the change, once the law takes effect, a state agency will be allowed to only use results from marijuana testing labs that are certified by both the Colorado Department of Revenue and accredited by the International Organization for Standardization and International Electrotechnical Commission. Only two of the MED's sixteen registered testing labs currently meet those requirements.
While medical and recreational marijuana products will still remain subject to all of the state's potency and contaminant standards, the MED won't be able to take enforcement action if failed product tests come from labs that don't meet the new law's requirements.
Sections 7 and 8 of the HB 1367 are slated to take effect on January 1, 2018. Because Hickenlooper abstained from signing the measure, he hopes the bill's sponsors will present new legislation with corrected text at the start of next year's legislative session, which begins on January 10 — meaning some commercial marijuana violations won't face repercussions for at least ten days.
"It is highly unlikely that any enforcement action will be triggered in the first month of 2018," Hickenlooper writes. "Therefore, a correction enacted by the General Assembly in the early weeks of the session is critical."
The bill's sponsors, senators Cheri Jahn and Randy Baumgardner and representatives Dan Pabon and Jeni James Arndt, told Hickenlooper's office that the change was unintentional, and all four have agreed to work with state agencies to redraft the law. "For those reasons," Hickenlooper writes, "and with the understanding that all parties will work cooperatively and expeditiously in the 2018 Regular Session, I allowed HB 17-1367 to become a law without my signature."
Jahn and Baumgarder were also sponsors of HB 275, a bill with similar provisions that died in the House last month. Like the law Hickenlooper left unsigned, it called for marijuana testing labs to be certified by the Department of Revenue and have accreditation from the International Organization for Standardization and International Electrotechnical Commission.
The final paragraph of section 3 in the dead bill reads almost exactly like sections 7 and 8 of HB 1367:
A STATE, LOCAL, OR MUNICIPAL AGENCY SHALL NOT EMPLOY OR USE THE RESULTS OF ANY TEST OF MARIJUANA OR MARIJUANA PRODUCTS CONDUCTED BY AN ANALYTICAL LABORATORY THAT IS NOT CERTIFIED PURSUANT TO THIS SUBSECTION (3)(a)(IV) FOR THE PARTICULAR TESTING CATEGORY AND ACCREDITED TO THE INTERNATIONAL ORGANIZATION FOR STANDARDIZATION/INTERNATIONAL ELECTROTECHNICAL COMMISSION 17025:2005 STANDARD, OR ANY SUBSEQUENT SUPERSEDING STANDARD, IN THAT FIELD OF TESTING.
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