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Why Are Legal States Setting More Limits on Cannabis?

If you’re not a Colorado resident, you might have missed the fact the Legislature there just dodged an effort to ban all cannabis products stronger than 15 percent THC. If you don’t live in Oregon, you might not know that regulators there plan to limit the potency of edibles to half that of other legal states. And if you didn’t go skiing in Aspen this winter, you might not realize that county commissioners there could do away with edibles in all but pill form—no gummies, no cookies, no silky smooth chocolates squares out on the slopes.

As more states look at legalization, a few already-legal locales are actually considering tighter restrictions. Some of the country’s most cannabis-friendly jurisdictions are weighing whether to narrow the choices available to consumers and patients. What gives?

Fixing a Fledgling System

Cannabis-infused edible chocolates

In Oregon, authorities are planning to implement a new rule that would cap individual serving sizes of infused edibles at 5 mg THC, or half that of Washington and Colorado. Currently there are no potency limits for Oregon edibles, though they’re only available to state-registered medical patients. The measure is scheduled to go into effect on Oct. 1. Regulators explain the change not as an attack on the industry but as a push to curb the horror stories of young children coming into emergency rooms after mistakenly ingesting edibles. The new limits, they say, are actually aimed at helping the new market succeed.

“Everybody’s aware that all eyes are on us,” said André Ourso, manager of the Oregon Medical Marijuana Program. As the statewide experiment unfolds, it’s no secret U.S. and international governments are watching keenly. “It’s a frontier,” Ourso said. “It really is something new, and I think everybody wants to do it right and not make mistakes going forward.”

Oregon’s new rule would limit retail edibles to 5 mg THC per serving for things like cookies and chocolates. An entire package could contain no more than 50 mg. Medical products would have higher limits, up to 100 mg per package.

While Colorado and Washington have had years of regulatory opportunities, “this is pretty much our first real regulatory crack at rulemaking,” Ourso explained. “Setting lower limits, it allows us to look at things in a more cautious public health manner.”

Cannabis-infused gummy bears

Cannabis-infused gummy bears

He stressed that the lower limits don’t mean Oregon regulators are opposed to cannabis. “We don’t want to decimate an entire industry; that’s not our goal,” he said. “We want to have a well-regulated industry, just like any other.”

The proposal is winning hesitant buy-in from some producers and dispensary operators. While business owners aren’t necessarily in favor of the proposed rules, they said, they understand the unique position legal cannabis still occupies.

“I think obviously they’re coming from a public safety standpoint, and we get it,” said Oregon cannabis entrepreneur Brent Kenyon, founder of Southern Oregon Alternative Medicine dispensaries and maker of the 400-mg-THC Chocowanna Bar, which would be prohibited under the new state rule.

A big piece of the industry’s buy-in seems to come from the sense that authorities in Oregon are genuinely on board with cannabis. When there’s a rub, Kenyon said, he’s seen the Oregon Liquor Control Commission, which also regulates cannabis, revise rules in response to feedback from both the industry and the public.

“They’ve done a great job of reaching out to everyone,” Kenyon said. “The state of Oregon doesn’t want to squish commerce.”

The Importance of Information

Woman doing research on tablet

If trust can go a long way in getting stakeholders on the same page, though, a misunderstanding can make for disaster. In Colorado, a recent legislative push to limit the potency of all cannabis products drew the ire of many in the industry. Michael Elliot, executive director of the Denver-based Marijuana Industry Group, described the measure in a Denver Post op-ed as “an attempt to make pot illegal.”

The proposal would’ve capped THC in all cannabis and cannabis products — including concentrates — at 15 percent. That’s lower than the current state average of 17.1 percent THC for raw flower, and it’s drastically below the average concentrate potency of 62.1 percent.

The Colorado lawmaker who introduced the legislation, Rep. Kathleen Conti (R-Littleton), said in an interview that the proposal came in response to a lack of scientific research into the safety of high-THC cannabis. She also said it’s her opinion that too many in Colorado have adopted the belief that “if it’s legal, it can’t hurt you.”

“We don’t know that to be true,” she said.

Critics, however, said the ignorance cut both ways. The manner in which the bill was written, they argued, suggested Conti and her staff didn’t adequately understand cannabis.

“I don’t think a lot of thought was put into the proposals,” Mark Slaugh, executive director of the Cannabis Business Alliance, told the Denver Post as the measure was being considered. “This bill threatens to wipe out most infused product manufacturers, and its language is unclear what to do with edibles.”

Growers would have to destroy common strains with higher THC levels, they complained, and even carefully cultivated cannabis could come in above the cap, depending on growing conditions. And ultimately if consumers couldn’t obtain their favorite products legally, critics warned, they’d likely turn to the black market.

The 15-percent limit barely fell short in committee, by a 6–5 vote, but lawmakers have promised to return to the issue next year. In the meantime, both sides are gearing up to battle over a bill introduced last week, HB 1436, that would prohibit infused edibles that “resemble the form of a human, animal, or fruit” because they are “shaped in a manner to entice a child.”

Regulation or Education?

Person reading in bookstore

There are good reasons to question caps on cannabis potency. But it’s also fair to say that edibles earn cannabis a lot of bad press when people, whether children or just rookie consumers, accidentally eat too much. New York Times columnist Maureen Dowd is an infamous example; she ate a whole cannabis-infused candy bar without realizing it contained 16 servings.

Even officials who favor cannabis have started to rethink edibles. In Aspen, Colo., Sheriff Joe DiSalvo admits he’s struggling with how to regulate products like cookies and candy, which he worries might appeal to kids. County commissioners have asked DiSalvo to provide a recommendation as to whether Aspen should ban all edibles except for those in pill form, a decision the sheriff said he’s still considering.

“It goes back to, for me, what is the real point of a cookie or a gummy when you can get it delivered in a different way?” he said. “I don’t know why you need to have in this other form when you could swallow it and be done with it.”

He acknowledged a lot of the terrible stories he hears are anecdotal. “I wonder about that myself sometimes,” he said. But because he worries horror stories cause harm to the industry, he said a ban on edibles might be the way to go.

“Is cookies and candies equivalent to putting a smiley face on a bottle of Jack Daniels and making it appeal to a kid?” he asked. “When it comes to children and use, we’re all concerned about that.”

How does he feel about a cap on overall cannabis potency in Colorado? “I would fight it to the death. I don’t see a lot of accidental ingestion with flower.”

Let’s be absolutely clear: Whether inhaled or ingested, cannabis won’t kill you. Yes, accidentally eating an edible can be miserable. Some people who consume too much say they think they’re dying (which would surely be a traumatic experience for a young child). But unlike alcohol, tobacco, prescription drugs, and a whole host of illicit substances, cannabis isn’t lethal.

And while the problem of accidental ingestion is growing, it still appears relatively isolated. As Oregonian reporter Noelle Crombie put it recently:

Last year, the Oregon Poison Center received 25 calls related to children under 6 consuming marijuana, up from 11 the previous year. (By comparison, the center received an estimated 1,800 calls in 2014 about young children getting into household cleaners, according to data provided by the agency.)

The situation leaves many in the industry feeling like they’re left to thread the needle. While the risks posed to children from cannabis are less severe and less frequent than overdoses from other legal substances, nearly every awful story involving cannabis is seized upon by media and, ultimately, lawmakers.

Kenyon, who’s worked in medical cannabis in California and Oregon for nearly two decades, acknowledged that nobody, least of all cannabis advocates, are comfortable with kids in the E.R. “Nobody likes that,” he said. “But the reality is, marijuana is nontoxic. It hasn’t happened. Not one death.”

“I understand baby steps” into adult-use legalization, he said. But he also worries officials are focusing too much on regulation. The proposed limits on Oregon edibles might mean customers buying more of his edibles, but he doubted they’ll solve the problem of children mistakenly eating them. Like most of parenting, he said, it’s about education.

“When it comes to restrictions on child safety and child awareness, education is the number one thing, just like it is with alcohol, just like it is with running in the middle of the street,” he said. “This is no different.”

DiSalvo, the sheriff in Aspen, said he agrees—but it’s not quite that foolproof. “I do wish adults could be more responsible,” he said, “but we’re not.”

Ben Adlin's Bio Image
Ben Adlin

Ben Adlin is a Seattle-based writer and editor who specializes in cannabis politics and law. He was a news editor for Leafly from 2015-2019. Follow him on Twitter: @badlin

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