On June 11, the National Cannabis Industry Association (NCIA) held their Colorado Cannabis Caucus in Boulder. As a dues-paying member of NCIA, Simplifya was there to represent the regulatory compliance game! There was excellent food (and excellent drinks), but the highlight of the night was hearing from our local government representative, Jonathan Singer, and our public policy advocate from the District of Columbia, Andrew Kline. While our last networking event involved learning about the next steps for regulators following a slew of new marijuana bills that passed in Colorado this year, this event focused on next steps for the industry.
So this year we got legal hemp, cannabis deliveries, public investment, social consumption, and expanded qualifying conditions. What else do we want? Well, here are a few ideas….
Colorado Cannabis Caucus Wishlist
State Rep. Jonathan Singer (House District 11) spoke first. Rep. Singer represents most of Longmont as well as Northwest Boulder, part of Niwot and part of Gunbarrel. He was also one of only two state legislators to endorse marijuana legalization back in 2012 (thanks, Mr. Singer!)
No Qualifying Conditions
This year, Colorado added to the list of qualifying conditions that would entitle patient access to medical cannabis; autism spectrum disorders and any affliction that would normally require an opioid prescription are now included. But Rep. Singer wants to go further. “Get rid of qualifying conditions!” he said. That statement was met with applause, so he isn’t alone in his stance.
So, why end qualifying conditions? Because, if medical cannabis is to be treated on par with other medications, it should be up to the doctor and their patient to determine whether a certain medication will benefit them. They shouldn’t have to check that the Department of Revenue agrees with them before they can access a potentially beneficial drug. No other prescription drug is limited in this way. (Yes, we know that doctors can’t legally prescribe cannabis — it has to be a recommendation— but the logic still applies.) Doctors and patients should be trusted to make that decision together without interference from the government.
“You came here for cannabis? Great! It’s legal to purchase and possess here. Oh… you want to consume it? Don’t do it at the park, or in public; that’ll get you a public consumption ticket. And don’t do it at a hotel, bar, or dispensary; that’ll get you a Clean Air Act violation. Oh, you’re back at DIA? You better have consumed it by now, because you can’t take it on the airplane.”Rep. Singer at the NCIA Colorado Caucus, 2019
In 2019, Colorado passed a bill authorizing “Hospitality Establishments,” which are better known as consumption lounges. This will cure a major problem that tourists have when they come to Colorado and want to consume cannabis, but don’t have a place to do it. As Rep. Singer put it: “You came here for cannabis? Great! It’s legal to purchase and possess here. Oh… you want to consume it? Don’t do it at the park, or in public; that’ll get you a public consumption ticket. And don’t do it at a hotel, bar, or dispensary; that’ll get you a Clean Air Act violation. Oh, you’re back at DIA? You better have consumed it by now, because you can’t take it on the airplane.” With the enactment of this new bill, hospitality establishments will provide a place that is exempt from the Colorado Clean Air Act so people who can’t consume in their private residence have an alternative for legal consumption.
But again, the industry wants to go further. One Q&A participant asked if we will ever get to a point where public consumption is legal. Denver allows full-strength beer and wine in their parks, why not cannabis? Well, for one thing, consuming beer near someone at a park won’t cause them to accidentally fail a drug test at work. This leads us to the next item on the wishlist.
Test for Impairment, not Chemicals
In Colorado, you can still be fired from your job for legally consuming cannabis, even if you consumed it off-duty and were not impaired at your job. This is the case in most states. Rep. Singer, and most industry members don’t think employees should be punished for legal activities that happen outside of work and don’t interfere with the employee’s ability to work. That is why they advocate replacing drug tests with a test that only measures your alertness and reaction time, not the level of THC in your bloodstream. Rep. Singer pointed to fatigue tests that are given to long haul truckers as an excellent model for alternative testing.
It has long been argued that the legal level for cannabis DUI (5 ng/mL) is inconsistent in predicting impairment because heavy users usually have a higher baseline level in their bloodstream without actually being impaired. But a recent study even showed that drivers at the 5 ng/mL level were no more likely to cause an accident than other drivers. If you’re not endangering anyone with your consumption, why should you be punished for it? This is why industry members want to do away with this type of drug testing for DUI as well as in employment.
About 12 states provide protections from discrimination for medical cannabis users and Maine is the first state to protect employees for all off-duty consumption. Colorado should follow suit!
The social equity movement is taking off in the industry. Part of that movement involves clearing the records of people who were previously convicted of marijuana offenses before legalization so that those people won’t be left out of the new industry. A number of cities in Colorado, Maryland, New Hampshire, Oregon, and California have been rolling out record sealing clinics where people can get their previous marijuana convictions sealed. But the industry wants more protections for these individuals.
Rep. Singer has worked with Boulder to seal thousands of records, but true expungement is the ultimate goal. Sealing a record generally prevents the public from seeing it, but it can still be accessed with a court order. Expungement would actually delete every record of the offense so it would never be seen again, even by a court. The logic goes, if your actions are no longer considered a crime, you shouldn’t face any long term repercussions of that action in court or in your employment prospects. Judging by the applause in the room, this is a popular idea too.
Federal Cannabis Caucus Wishlist
Next up was Andrew Kline. He gave us a rundown on developments at the federal level, and the NCIA’s efforts to get more cannabis reform through the Capitol.
Actual CBD Regulations
Sure, hemp is legal now, but what about hemp-derived CBD? Or for that matter, cannabis-derived CBD in legal states. There are a lot of wild claims being made about CBD; many of them without any sort of basis in science. That’s why the FDA recently held a public hearing on CBD. NCIA submitted a 60-page Public Comment Submission on behalf of the industry, arguing that CBD is Mostly Harmless, but that a lot of the more bold health claims are unfounded.
The industry would like to see some more guidance concerning CBD. Edibles containing CBD are legal in Colorado and Illinois, and may soon be legal in California, but they are still largely unregulated and garner a lot of health claims that are unfounded or false. But Mr. Kline estimates it could still be one to two years before we get any sort of guidance from the FDA.
SAFE Banking and 280E Reform
Heavy financial burdens have hampered the market for years now. Banks can’t accept cannabis clients unless they heavily monitor those accounts and make regular “Suspicious Activity Reports” to the Financial Crimes Enforcement Network (“FinCEN”). And because cannabis businesses are considered drug-traffickers by the IRS (280E), they can’t make the same tax deductions that are afforded to regular businesses.
Mr. Kline sounded less than optimistic about these efforts. While the SAFE Banking Act has 208 co-sponsors in the House, and 30 in the Senate, it has to go through the Senate Banking Committee, which is chaired by Idaho Senator Mike Crapo. Sen. Crapo has proven unfriendly to the cause and is therefore unlikely to let the bill out of committee if it’s up to him– and it’s mostly up to him. NCIA efforts to reform 280E are also in limbo since they didn’t make it into the last tax bill.
The industry has come a long way. Colorado and other states have made huge strides in normalizing and liberating cannabis users. But there is still much more we can do to make things easier for the industry, producers and consumers alike. But no matter what new developments come your way, Simplifya will be keeping pace with the changes, helping keep cannabis safe and compliant.