While the potency battle has been waged before in Colorado, with proponents of limits losing that fight, another round could be in the works.
Earlier this month, marijuana activists and industry members were alarmed when rumors began swirling that a proposal to cap THC content in commercial marijuana products could be introduced at the Colorado General Assembly this year. While lawmakers don't expect such a measure to actually appear, they acknowledge that the topic has been broached by anti-marijuana organizations during both public and closed-door meetings.
"I would call it murmurs without a bill this year," says Representative Jonathan Singer.
Commercial marijuana concentrate products can reach upwards of 90 percent THC, with strains of flower capable of testing well over 20 percent. Legalization opponents say that the potency of these products can lead to higher addiction rates and psychosis, while medical marijuana advocates and industry representatives argue in favor of personal freedom, saying that more studies about THC addiction are needed and pointing out that highly concentrated products are used to treat certain medical conditions.
Legislative language proposing a potency limit failed in 2016, while an initiative proposing a potency limit fell short of making the ballot the same year, and a proposed potency amendment to a 2019 bill overhauling commercial marijuana rules didn't have enough support to even go to a vote. Since that effort failed, Smart Approaches to Marijuana, the main proponent of those potency cap initiatives in Colorado, has focused on fighting potency and legalization in states such as Connecticut, New Jersey and New York.
"We're not actively engaged in trying to push for a potency cap right now in the Colorado Legislature," says SAM senior policy adviser Luke Niforatos. "The legislature is very much listening to industry lobbyists right now."
Since the election of Governor Jared Polis and several other marijuana-friendly lawmakers in 2018, a litany of new bills expanding the state's pot industry have successfully passed through the legislature. However, industry lobbyists believe that SMART Colorado, an organization committed to keeping pot out of the hands of children, may be trying to push forward a potency limit here. Representatives from SMART have continually lobbied for THC limits during regulatory stakeholder meetings and other gatherings, and even put up a billboard in the Denver metro area last year warning parents about the potency of commercial marijuana, labeling it a "hard drug."
SMART Colorado declined to comment on the possibility of new potency legislation in Colorado, instead pointing Westword to a letter that SMART chairman Doug Robinson sent the Denver Post in January, supporting Senate Banking Committee Chairman Mike Crapo's proposal that a federal limit of 2 percent THC on legal marijuana be added to the SAFE Banking Act — a bill that made it through the U.S. House of Representatives that would allow banks and financial institutions to serve state-legal pot businesses — in order for it to move to a Senate vote, and a January op-ed published in the Washington Examiner in which SMART co-founder Diane Carlson does the same.
Carlson did speak with Westword in early 2019 about SMART Colorado's campaign for a THC product limit, saying that marijuana regulators are "behind the eight ball" in Colorado and "not keeping up with the market."
But the THC limit proposed by Crapo and praised by SMART Colorado, and the 3 percent cap SAM has been pushing in states across the country, are both a far cry from the products sold at dispensaries (the 2016 effort in Colorado called for a 15 percent THC limit). This makes the potency-limit conversation a "total non-starter" with the pot industry and the Polis administration, according to Niforatos.
"Obviously, Governor Polis has made it clear that he's all in on marijuana in any shape or form, and the administration has not indicated that it's open to any criticism of the industry," he says.
No state that has currently legalized marijuana has a THC limit on products. Florida lawmakers are considering a 10 percent cap on THC in medical marijuana products, though, while a commercial legalization measure moving through Vermont's state legislature would limit retail marijuana flower to 30 percent THC and concentrates to 60 percent THC.
As more states consider legalizing marijuana, Niforatos predicts that SAM and SMART Colorado will continue using the potency argument as a way to push prohibition or add guardrails to legalization laws.
"I think that people are going to start talking about this more. We bring it up with legislatures, whether it's in Colorado or anywhere else, and they don't really know about it," he says. "People who are pro-cannabis are freaked out by potency limits."