Colorado's Marijuana Enforcement Division will hold a marijuana rule-making hearing starting at 9 a.m. today, October 16, in the Gaming Commission Room, 17301 West Colfax Avenue in Golden. In advance of that session, Todd Mitchem shared the following statement, which he plans to deliver during the public-comment section of the meeting.
My comments are written not only as a representative of the marijuana industry, but as a father, a husband, a voter and a consumer of cannabis. I entered this industry to help raise standards and to work alongside the brave men and women who lead the charge to bring us all quality products that are safe for consumers. Through their hard work and fearless determination, they have pioneered a new industry which employs tens of thousands of workers and has become a positive economic engine for our state's economy. This industry has provided safe products which consumers count on for their ailments, pain relief and as a safe alternative to other more harmful substances like alcohol. We are now at a place where consumers are feeling confident about this industry, and I argue that some of these new rules will create market hysteria and further drive the narrative that "marijuana is dangerous."
The legal marijuana industry views the opportunity to operate in Colorado as a privilege. I have spoken on this topic at length to groups of regulators around the U.S., including Attorneys General in over forty states. The Colorado legal marijuana industry is viewed in the highest regard, as are regulatory bodies like the Marijuana Enforcement Division, which I respect greatly. But many of the new proposed rules start to go over the line of the intention of the amendment in our state's constitution. Operators across the industry believe in protecting consumers, protecting the health and safety of the public, and following the rule of law. However, as I read over these proposed rules, it was clear to me that certain groups have a desire to create a narrative that marijuana should be regulated like pharmaceuticals, rather than as originally intended.
In the Colorado Constitution, Amendment 64, as voted on by the citizens of Colorado, it is articulated that we are to regulate marijuana like alcohol, not like pharmaceuticals. I am asking the Department of Revenue and the Marijuana Enforcement Division to refrain from allowing promulgated rules to violate the spirit of the constitution at the behest of special-interest groups. These groups only care about eradicating the industry and depriving veterans, people with terrible conditions like cancer and hardworking Americans who choose cannabis of their constitutional right to purchase and consume these products freely. As many of these special-interest groups stated at a recent conference at the Colorado Christian University, they wish to destroy the marijuana industry and will use any means at their disposal to do so. These groups are dead-set on creating hysteria through anti-cannabis industry rhetoric by influencing this agency and others and attempting to develop solutions to problems that do not exist. Having individuals who represent special interests on the rule-making groups is a clear conflict.
The legal marijuana industry works tirelessly to abide by rules that help consumers make safe choices about products, and works with regulators to create these rules in a way that upholds our constitution. Instead of building rules that focus on actual consumer protection, public health and safety and the rule of law, we are now entering a time of deep over-regulation. This constitutional violation is going to damage the industry, cost companies tens of millions of dollars, put smaller organizations out of business, and drive the consumer to underground cheaper markets. In essence, many of these suggested new rules only serve to reignite the false narrative that cannabis is somehow dangerous and should be treated as such.
Here are a few highlights from the many suggested changes we submitted to the MED.
The current state statute states that cannabis should be placed in childproof containers "OR" childproof exit bags upon leaving the store. But the new rule eliminates the "OR" and forces all companies to now childproof flower/bud, topicals, all concentrates and even seeds. I would like to see the report where a child ate a bag of marijuana seeds and became high. Furthermore, I would like to see the news that small children are ingesting cannabis flower or topicals and becoming ill. If a child ate a handful of cannabis flower, which is not yet activated THC, that child would be more at risk of a choking hazard rather than potentially getting high. Furthermore, as a parent, I reject the notion that the state should be allowed to force rules that childproof a product like cannabis, which is non-lethal, when truly dangerous substances like alcohol, firearms, tobacco and even alcohol-infused chocolates are not childproofed. Are we seriously suggesting that we now childproof all non-lethal substances kids can ingest?
There is no conceivable reason that cannabis bud/flower, seeds or topicals should be forced into childproof containers, which will ruin the consumer experience at the store level and force the industry to pass costs to consumers. I would like the "OR" in the state statute to remain the rule of law and let the exit bags suffice for childproofing, except in the case of edibles, and would like to give the power of protecting kids back to parents. If you as a parent allow your child to eat marijuana flower, we as a society have a far larger issue with parents, not the industry.
We have an inadequate amount of testing facilities in the state of Colorado. These new rules around testing suggest that the limited number of testing facilities will now be able to build an oligarchy in our state that will allow them to force whatever pricing they wish onto the industry. I fear this will cause a series of price gouges that can further hurt consumers in both costs as a false sense of safety. In the past, many facilities have often proven inaccurate as they learn how to test better. I am concerned that this increased volume of testing, without oversight, will cause more harm than good.
Two other examples
Rule: R 402(C)(3) Quantity Limitations on Sales: “A Retail Marijuana Store and its employees are prohibited from transferring more than one ounce of Retail Marijuana flower or its equivalent in Retail Marijuana Concentrate or Retail Marijuana Product in a single transaction to a consumer. A single transaction includes multiple transfers to the same consumer during the same business day where the Retail Marijuana Store employee knows or reasonably should know that such Transfer would result in that consumer possessing more than one ounce of marijuana."
But for licensees to comply with this rule, they would need to record personal information on each customer, raising privacy concerns, which consumers did NOT vote to allow.
Rule: R 1501(B)(5) Retail Marijuana Concentrate or Retail Marijuana Product Ongoing Contaminant Testing: “After successfully obtaining process validation, a Retail Marijuana Cultivation Facility or Retail Marijuana Products Manufacturing Facility shall subject at least one Production Batch to all contaminant testing required by Paragraph (C) of this rule every seven days.”
Must a cultivation or MIP test one production batch weekly from each type of validated concentrate or product or just one production batch weekly for the entire facility?
If the rule requires a weekly test of each separate concentrate type or product, that is 60 extra tests we will be required to submit on a weekly basis. Each test for contaminants is about $100. That is a total cost of $6,000 per week and $312,000 per year. Of course, this does not consider the potential price gouging due to lack of competition in the testing space. I request that a Licensee is required to submit one Production Batch total per week.
As I said, these are just a small grouping of examples that I feel we must start to revamp. I would also suggest that due to the massive costs to the industry, the Marijuana Enforcement Division begin to look at longer planning horizons for rule changes so that businesses and consumers can have some sense of stability and consistency. Each time there is a rule change, which is nearly every year, the industry and consumer suffer.
I will end with this: Since 2014, the marijuana industry has created over 25,000 new jobs in the licensed part of the industry with another estimated 10,000 jobs in the ancillary businesses. The industry has contributed hundreds of millions of dollars in the form of taxes, raised property values in areas where dispensaries exist and have followed every rule change while attempting to work with regulators to make smarter regulations.
But what is happening now around rule-making takes us down a slippery over-regulated path driven by special interests of prohibitionists, sending the wrong message to consumers, while being unsustainable for the industry. I encourage the public to join us at the Medical Enforcement Division public hearing today. I also urge the rule-making body to reconsider some of the overreaches contained in these proposed rules and to start to adhere more to the spirit of the constitution, which is to regulate as intended, not as if these safe products are dangerous pharmaceuticals.
As a parent, I will protect my children; I do not need the government to do so. As a consumer, I will purchase products from reputable companies, which are safe for me. As a voter, I ask that we promulgate rules that make sense and follow the amendment I voted for in 2012. As a citizen of this country and the great state of Colorado, I ask the rule-making authorities to adhere to the constitution that holds the fabric of our democracy together.
Todd Mitchem is a Libertarian candidate for the House of Representatives from Colorado's 2nd Congressional District, an author, senior government affairs and community relations liaison, father and devoted husband. Email him at ToddM@ToddMitchem.com; find out more at at ToddMitchem.com.
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