CBDs and the FDA. Collision course or Consumer Protection?

Many believe that CBDs are simply legal, over-the-counter products now. As I’ve written, and as reality is confirming, it is not that simple. That aside, the current, winter/spring 2019 immediate new challenge is a little different.

Once the 2018 Farm Bill was passed federally this Fall, the landscape changed. Regardless of the contradiction with the Farm Bill and the Controlled Substances Act, changing by the day, hemp is de facto legal. In many ways it might as well be. BUT IT IS NOT THE SAME THING!!  Do many truly believe it is? Yes. Are many of those very smart, “in tune” pot lawyers? Yes!. Is the question clear? No! And the landscape is changing fast.

The latest issue this winter/spring 2019, may be the FDA. Once the Farm Bill said “hemp is a legal legitimate crop for many reasons,” the FDA, the Food and Drug Administration, took a sincere interest in hemp. They may well have been looking at this issue for years.

So what is the FDA? What is their Mission Statement? In other words, do we care what they think? The answer is “yes we probably do care what they think and do.” They may be well within their assigned mission when it comes to some CBD products. While they don’t “own” CBD, they do have rather broad powers.

From the FDA Website of the Federal Government, https://www.fda.gov/AboutFDA/WhatWeDo/

FDA Mission

The Food and Drug Administration is responsible for protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, and medical devices; and by ensuring the safety of our nation’s food supply, cosmetics, and products that emit radiation.

FDA also has responsibility for regulating the manufacturing, marketing, and distribution of tobacco products to protect the public health and to reduce tobacco use by minors.

FDA is responsible for advancing the public health by helping to speed innovations that make medical products more effective, safer, and more affordable and by helping the public get the accurate, science-based information they need to use medical products and foods to maintain and improve their health.

FDA also plays a significant role in the Nation’s counterterrorism capability. FDA fulfills this responsibility by ensuring the security of the food supply and by fostering development of medical products to respond to deliberate and naturally emerging public health threats.

To me, that seems to apply to many types of CBD products as currently being marketed and advertised and used. As to moral/intellectual judgments, if the FDA saw this coming, they should have said something. On the other hand, if the CBD industry saw this coming, they should have been planning for FDA approval for a while.

The reality may be that the FDA was sending them away, and is now saying “you can do nothing without our approval.” Do I really want to know the facts? Here’s what I’m pretty clear on. The FDA and the CBD courses of action are headed on a collision course. I hope I’m completely wrong.

Is CBD legal or not??

Is CBD legal in all states? In some states?

As we already know, Cannabidiol, CBD, a single cannabinoid of the 105+ cannabinoids naturally occurring in marijuana,  appears to have significant health benefits in many studies. It also has no “get you high” effect. While arguably “psycho-active,” because it appears to reduce anxiety for example, it does not get one “high.”

2/13/2019, I see the following confirmation of a trend I predicted, without joy. I’ve written that the legality of the cannabinoid CBD, or cannabidiol, is ambiguous. I predicted that because of the ambiguity, some people, believing CBD to be nationally legalized, will be prosecuted criminally. I immediately learned of friends whose clients were suffering that very fate. Today  Civilized Life reports that NYC is cracking down on “main stream” CBD products. According to the article, the  New York City Health Department is cracking down on restaurants and coffee shops selling products with CBD in them. The Health Department is claiming that CBD isn’t approved as safe to eat or drink, and therefore establishments in the city are not allowed to use it as an ingredient in their products. This of course mirrors the FDA involvement I’ve written about.

Some lawyers argue well that hemp, and CBD made from hemp, is legalized by the 2018 Farm Bill. 

An excellent way to track the status of the various pending federal bills which have already been put forth to solve the problem, the status can be specifically tracked on the NORML website.

Recently, increasingly, CBD has been treated as legal, and has to a large degree become de facto legal. Legal because everyone thinks its legal. This misperception has become stronger after the passage of the Federal Farm Bill this year. Bring the Federal Farm Bill, passed in late 2018, and the FDA appearing at the table, and the near future trend is worthy of attention. It poses great danger to those already invested in the CDB business. While many elected to office are siding with the populace, with the votes and with the money, ignoring or supporting the “legality” of CBD, the Federal Food and Drug Administration is not taking a laissez-faire attitude. On the heals of the Farm Bill passage, the FDA announced that it now came into their bailiwick, being a substance for human consumption, application, etc., and possibly meeting the criteria to support the assertion of FDA jurisdiction.

While long-term, I see no question that CBD will be legalized and regulated nationally and beyond, short term, some people will get caught in the meat grinder we call “law.” People following the advice of attorneys will sometimes find themselves being prosecuted for doing what they truly believe is legal.

The legal conundrum is this. First, marijuana is still a Federal Controlled Substances Act Schedule One Controlled Substance (with contradictions appearing in many places legally). That includes CBD, which comes only from the cannabis plant. Second, and what is looming as the most critical impending problem is this.

Once the Farm Bill passed, the FDA Food and Drug Administration jumped in immediately, asserting their power over things to be consumed or applied to the body. The current  range of purported CBD products  are available everywhere from truck stops to Amazon to legal cannabis stores.

Some  CBD products are produced in states where it is at least “state-legal,” regulated and lab-tested. The labels are hopefully and probably fairly accurate as to the product actually found in the container. No extra ingredients, and no missing ingredients. No extra THC, pesticides, molds, and the like.

In states in which Cannabis is legalized, regulated, and monitored including laboratory testing for ingredients, the consumer can be pretty confident that the product contains generally what is claimed on the label.

In other states, there is simply no way to know if a product on the shelf or website resembles its label contents or not.

Not only might there be zero CBD, but there may be THC present in higher amounts than per the label. Products which appear “legal” on the label in fact may not be. A tractor trailer of purported hemp, with very very low THC, was stopped, and the drivers held in jail for 30 days. While they are now out on bond, the case continues, and more testing in a different laboratory is being pursued.

Conclusion: During this transition period, I believe we can have more confidence in CBD labels on products from states which have legalized and regulated CBD and other cannabis products. Otherwise, there is simply no way to tell what the product really contains. It could be high in THC, resulting in failing urine drug testing, may contain harmful ingredients, and may contain little or no CBD. This is an excellent example of a legitimate need for government involvement to protect consumers, whether they are using marijuana medically or recreationally or both.
When one takes a medicine, one needs to have confidence in the contents of the product. That comes with legalization and regulation.

Vacating Old Marijuana Convictions in Boulder, Colorado

 

As we know, efforts are underway in Colorado, California, Washington and elsewhere to permit and assist people with “qualifying” prior marijuana convictions to expunge, vacate, get pardoned, or otherwise reduce the ongoing negative impact of old possession cases. For Boulder Colorado, regardless of the progress of the state effort in Colorado, the District Attorney has issued the following for guidance. Most important, there is a link to the form and instructions from the Boulder District Attorney on the District Attorney’s website that can be submitted electronically www.bouldercounty.org/district-attorney

Moving On from Marijuana” Convictions

The Boulder District Attorney’s Office has previously announced a new initiative called “Moving On from Marijuana.” As part of the new initiative, the District Attorney’s Office will take proactive steps to help vacate marijuana convictions on behalf of qualifying defendants in order to relieve them of the collateral consequences, such as college admission or gainful employment, associated with prior convictions for conduct that would be legal today.

The Boulder Criminal Defense Bar has undertaken efforts to assist people impacted by this progress. We just announced that:

To kick off the “Moving On from Marijuana” initiative, we invite community members to join us in the Training Room on the 2nd Floor of the Boulder Justice Center, located at 1777 6th Street, Boulder, Colorado, on either January 10, 2019 from 9:00 a.m – 11:00 a.m or January 15, 2019 from 1:00 p.m.-3:00 p.m. to speak with us about prior convictions. If a case qualifies for relief, the District Attorney’s Office will assist with the process.

After this initial kick off, the District Attorney’s Office will have an application form on the District Attorney’s website that can be submitted electronically (www.bouldercounty.org/district-attorney).

District Attorney Michael Dougherty is committed to pursuing justice in every case and assuring that now legal conduct does not continue to have an adverse impact on people’s lives. It is a matter of fundamental fairness.

Be Healthy. Be Safe

Lenny Frieling

 

 

 

Inoculate The Northern Migration: Border Crises Mitigation

Whatever anyone anticipates as the ultimate fate of the children of the Northern Migration toward Texas and California, we have a large number of children that are posing a threat to themselves, to each other, and to unrelated population in their path.

It appears to serve the interests of all to see that these youngsters are immunized and inoculated for a variety of diseases. Let’s protect many, ameliorate or cure some present problems, prevent some future problems, and ultimately do it for a smaller total cost in hard dollars than choosing to not act.

Whether it is indigenous to the children’s’ geographic history or is something to which they are now exposed, these children present a variety of medical challenges.

We all benefit from having MDs and Team who specialize in the appropriate knowledge of relevant disease medicine, like the CDC, share that knowledge. We need to know what protection and treatment can be provided. We need protection and treatment for the children and we need self-motivated protection and possibly treatment for the rest.

As to funding, I would love to see UN funding in reacting to what many call a developing crises. If the US bears the brunt of the expense, we could spin it quite nicely. “US RESCUES LIMBO CHILDREN.” “US LEADS WORLD EFFORT TO PROTECT PEOPLE REGARDLESS OF ORIGIN.”
Drug companies could gain great press by supplying the appropriate medications at bargain rates or free.

If donated, the medicine does not interfere with the “wall funding” issue. Regardless of which side of the wall one is on, all benefit from a little preventative medicine. Did someone say “kickstarter?”

CBD and FDA

Now that the Farm Bill has legalized Hemp, we are hearing from the FDA. Surely they’ve been preparing for this event for years. The FDA has asserted its authority to meddle in products which are eaten or applied to our bodies. Their role is potentially for the public good and for the public’s protection.

Our current challenge is how to avoid the FDA slowing the legalization process while still doing its job. The answer is quite straight forward. They should present a plan starting with the list of what they think they need to monitor. Then, those items most easily implemented can be implemented the soonest. Those which require changes at the manufacturing end, more complex testing, and in general which require more complications and more expenses can be phased in over time. The time line of phasing in full FDA protection should balance the need for consumer safety and the expenses to and impact on the growing CBD industries.

This same model may work for other medically-beneficial cannabinoids, as we learn what products will be coming to market.

Drug Testing: Are We Asking the Right Questions? NO!

Let’s Ask The Right Question Regarding Impairment

© 2018 Leonard I. Frieling, Lafayette, Colorado

THC and Driving, Drug Free Workplace, Drug Testing, Impairment

People are getting arrested, convicted, and fired or not hired because they have failed a urine test for drug including cannabis.

We are asking the wrong questions. We are looking at chemistry from blood, breath, urine and saliva. From the results we are putting people in jail, refusing to hire them, and firing them.  Whether it is on-the-job or on the road, the question we really need answered is this. “Is this individual too impaired for the task at hand?” We don’t want drunk drivers on the road, and we don’t want workplace injuries and errors. The goal is SAFETY and not use or non-use of specific drugs.

The causes of potential impairment include drugs of many types, alcohol, being tired, and more. These potentially impairing things can come in widely varying combinations. Trying to distill the detection of impairment down to blood chemistry addressing a very short list of impairing influences is simply impossible at this time.

The questions and the solutions must address performance. Does an individual have sufficiently fast reaction time to drive safely? On the job, is their performance up to the standards of their personal baseline testing and the demands of the job?

We as a society have a compelling interest in whether or not an individual is too impaired to perform a range of potentially dangerous tasks, including driving. Rather than giving lip service to marijuana detection, the legitimate and important question is whether or not this particular individual is too impaired for the task at hand.

Until now the question has been answered by a blood, urine or saliva testing. This approach is antiquated and scientifically meaningless. It does not identify impairment. What is critically important is the actual performance of the individual at the time they are driving or working. This may or may not be influenced by an individual’s blood chemistry.

Currently a number of people are working on apps which look at performance issues such as balance and reaction time. Research is extensive on the potentially impairing effects of numerous drugs including cannabis. My Canary was extant a number of years ago, and others such as DRUID are available on the app stores. The latest research confirms that while alcohol and impairment go hand-in-hand, with blood levels tracking degree of impairment, that is not true for cannabis, cocaine, and other substances. Standard Field Sobriety Testing and Drug Recognition Evaluator have proven to be fairly useless as a scientific indicator of impairment, with alcohol impairment being the possible exception.

Short term memory is another metric easily tested in the work environment as well as at a traffic stop. It has been incorporated in some apps as one item for testing. For employment hiring and firing, performance testing can be based upon the individual’s pre-set “baseline,” their sober standard. Different jobs require different levels of performance.

We want safe roads and safe workplaces. We want to minimize waste, damage, and injury, while maximizing safety. We cannot do that with chemistry. We can do that with performance-based testing.

 

Can CDBs cause me to FAIL a Urine Test for THC?

Leonard Frieling

©Leonard Frieling, Lafayette Colorado 2018

12/14/2018

The answer is clear. Absolutely maybe.

CBD and THC (the chemical that gets us high) both come from the same plant. The cannabis plant has both present all of the time. I believe there is currently no “non-natural” source of CBD. It all comes from cannabis.

Unlike THC, which is the primary psychoactive component in cannabis, CBD is generally accepted as having no psychoactive effects. CBD is generally considered non-psychoactive, although it’s anxiolytic (anxiety-reducing) impact,  as well as potential anti-psychotic impact are technically “psychoactive” properties. It does not get anyone “high.” It is widely accepted as having a range of medical benefits. It will not cause anyone to fail a properly done test for THC. Blood testing can differentiate between the THC cannabinoid and the CBD cannabinoid. Sadly even testing positive for CDB alone may not guarantee any particular result,  BUT! There’s more to it than that.

A particular CBD product may not chemically match the label. Both CBD and THC are found in the same marijuana plant, all of the time. A label that says “little or no” THC may be accurate. Or not.

Some CBD products have been found to have trace amounts of THC. It is present in tiny insignificant amounts, and cannot get anyone high. CBD itself is probably not psychoactive at all. BUT the label claim of the % of THC may be wrong. The actual level may be higher because of incorrect labeling, poor production methods, poor testing protocols, or poor lab work.

The chemical that is identified in urine testing is produced by THC and not by CBD. This is well-established chemistry. So the less THC in the product as used, the safer for the drug-tested user of the medicine.  Some claim to have found that under specific circumstances, CBD may produce trace amounts of THC in stomach acid. Their results are not generally accepted. This suggests that CBD tinctures and salves may be safer by avoiding stomach acid.

So someone using a product which is labeled “CBD” “THC FREE” or CBD with a tiny % of THC, under 1% or less perhaps, is at risk to flunk a urine drug test for marijuana. I believe the risk to be quite low. I suspect that the failures will be when someone uses an improperly labeled or improperly tested CBD product, perhaps in larger amounts than normally used, or is a victim of poor “blunt instrument” drug testing. I suspect that for most, especially using salves and tinctures, the risk is extremely low.

Be healthy. Be safe.

How Many Plants Can I Grow in Colorado?

How many plants can I grow? How does the new law, HB 17-1221, which takes effect 1/1/2018 impact the number of plants I can grow at home?

The purpose of sharing this information and my observations is not intended to facilitate a crime, but to help you prevent committing a Colorado State crime, staying legal or sharing the information with someone who might need it. It is not intended to be legal advice, since every situation is different as well as changing in Colorado. It provides guidance.
I’m required to say (and its true as you know) that growing marijuana in any form in any manner, including as hemp and including CBD in any of its forms, in spite of street knowledge, is all illegal under federal law. For example, over 100 plants of any size with roots forming is federal mandatory 5 years prison.
As to Colorado State, in general, the feds are assisting the state LEOs in investigations of pot grows. The focus is on pot going out of state. Local LEOs are still focusing on grows entirely within the state, with the product staying in the state, based upon county ordinances, municipal ordinances, and state law. As you know these vary widely, and in many instances contradict the state constitution. Additionally, the LEOs vary in their understanding of the laws, apply them inconsistently, and don’t always use the right method or law for plant counts.
So, safest is probably a personal medical grow. Recreational, although also state-protected with proper compliance, is more dangerous federally.

Finally, on the cautionary end, here’s a real scenario, and not an uncommon one. This is part of what happened in the latest massive pot bust with 74 indicted defendants. The charges involved state racketeering charges. Similarly to conspiracy charges, one person at the bottom of the chain, the small fish, can be legally prosecuted for what was done by those much further up the chain, including selling smaller amounts to people that are sending it out of state. A small fish can be in almost as much jeopardy as those at the top.
As you believed, you were correct in saying that House Bill 17-1220, attached FYI and summarized in this memo, goes into effect 1/1/2018. It was in fact signed by the Governor, not just permitted to become law.
The state purpose of the bill is to crack down on pot going out of state, with particular emphasis on the high plant count caregiver situation. Since I cannot answer for additional limitations for every city and county in Colorado, I’ll be addressing the state law. It will be decided in court whether the locals overstepped or not. I believe local overstepping improperly on state law is clear, but the courts will decide eventually.
With those essential limitation, if you have a particular municipality or county in mind, you’d google for example La Plata marijuana ordinances. Googling “la plata marijuana offenses” readily points to both the County ordinances as well as to the Durango City Ordinances. Before any investment in expensive electric, lights, etc., it is worth a call to the City Clerk or to the County Commissioners with two questions.
First, is the law as posted on line the current one or does it need updating?
Second, are there any changes on the horizon? Changes in the same location over time have been the rule, not the exception. Remember that it applies to the “unincorporated” portions of La Plata and not to inside any city limits. For that, you’d do the same google search with the proper city name inserted. I’m happy to assist as needed.
Sections bracketed [by] square brackets are the author’s comments.
Focusing on HB 17-1220, the new plant count limits, the shortest summary is that the new law as of 1/1/2018 limits all home grows are limited to 12 plants, or in some case 24 plants. This applies to a residence such as a house or an apartment. A single residential unit must have a bathroom, kitchen, place to sleep, and permanent locations for eating, sleeping, living, cooking and sanitation. [I won’t speculate about the old-style of having the bathtub in the kitchen area, or a modern “efficiency”] Of course there may be covenants, lease provisions, etc., also impacting these numbers. The number of adults in the household does not matter, nor does the quantity in an “enhanced rec” permitting larger numbers. I think it is an open question as to whether the affirmative defense of “medically necessary” number of plants, contained in the Constitution is still available.
HB 17-1220 gives reasons for being necessary including local issues like odor, electricity safety and usage, fire hazards risk to first responders, target for criminal activity, and multi-national exploitation of the laws to export large quantities at least into other states. Human trafficking is even mentioned, as well as large amounts of weapons. Of course “children” are mentioned [in spite of the apparent decrease in under-age usage in Colorado].
The general marijuana law, 18-18-406 (3)(a) is amended and (3)(c) is added. The limits include growers, as well as those who allow a grow on property they own occupy or control. Recreational and medical are included, and indoor and outdoor grows are included. The general limit is 12 plants. That does not increase the “6 plant per adult, not more than 3 flowering” from the state constitution.
A “primary caregiver” or a medical marijuana patient with a twenty-four recommendation may grow the 24 in an enclosed locked space, and subject to the limits if any imposed by a city or county.
As to potential penalties for violating this new law, these state violations can be prosecuted by the state criminal court and in municipal court since both state law as well as municipal law can both be violated.
The majority of marijuana crimes are no longer designated as “misdemeanors” or “felonies.” They are classified as “Drug Misdemeanors” or “Drug Felonies.” The most serious, a DF-1, carries a minimum mandatory state prison term of 8 years. A chart of possible penalties for the various levels of pot crimes related to quantity follows.
Levels of offense based upon plant count in the household are:
DF-3 over 30 plants DF-4 over 6 plants and not more than 30 DM-1, drug misdemeanor 1, if not more than 6 plants. 18-18-406 (3)(a)(II)(A) which is in the new law, for a first offense, if more than 12 plants, carries a fine up to $1000.00 is denominated a level 1 Drug Petty Offense.

[yes, this seems contradictory to the DM-1 “not more than 6 plants” over the permitted number]
A second offense or subsequent offense if over 12 plants but not more than 24 plants is a DM-1 according to section (IV)(B). (IV)(C) makes it a DF-3 for a second or subsequent offense over 24 plants extra count.
Some of this does appear contradictory.
One reading of it (proposed by Jeff Wilson, a very bright lawyer) is that the first section and the later section provide for two different types of limits and corresponding crimes. The first section provides limits and penalties for growing a number of plants which might be legal under state law, but illegal under the new limits. For example, a person limited by the new law to twelve plants, with an MD recommendation and state “red card” for 99 plants might be growing 40 plants. That places them 28 over their new-law limit, but “state legal.” The final section deals with plant counts that violate the new law and are not state-legal either. Penalties are provided for both. The wording is poor, unclear, and generally an example of a poorly written piece of legislation.
Keep in mind that these specified numbers are the number of plants greater than the permitted number of plants. So if 12 are permitted, total count, for 2 adults, 18 plants would be 6 plants over, and a DM-1.
One of the complications in pot law in Colorado is that the way in which plants are counted is not the same in the state constitution, the state criminal law, or in this new law. Focusing only upon the new law, HB 17-1220, the size specifications do not match the size specifications and therefore the plant count contained in other Colorado laws, criminal, medical and recreational.
Of course, since the definition of “plant” changes depending upon which law is applied, the definition sections are important. In the new law, a “plant” is a cannabis plant in a cultivating medium, more than 4 inches wide or more than 4′ high or flowering regardless of size. Signs of budding at the nodes in the stem makes it a flowering plant.
“Primary Caregiver” for cultivates or transports for patients must register with the state and comply with all local laws. Forms are all found on the Colorado Department of Public Health and the Environment website. They are a division of the Department of Revenue. https://www.colorado.gov/pacific/cdphe/medical-marijuana-online-registration-system-frequently-asked-questions-faq and the other pages linked to it are quite useful. They contain both forms and information, and it comes from those tasked with enforcing the pot regulatory system for businesses, caregivers, and more including individual Medical Marijuana licenses. I have found them pleasant and helpful to deal by phone with whether or not you agree with their answers to inquiries. Their interpretation is conservative and strict, going beyond the laws themselves in some situations such as the obligation to report being charged with various crimes. Some municipalities have stricter requirements than the state laws.
While lower level “badged” employees in pot businesses may also be primary caregivers, while those licensed as a business, medical or recreational, cannot also be primary caregivers.
Grows larger than covered by this law, over 24 plants where 24 is permitted must register with the government covering their location if the “locals” require that. Additionally, violation carries the same penalties as C.R.S. 18-18-406 applies to every pot grow including counting plants differently. Registration with the state, starting with the CDPHE website link, is also required. The location cannot be residential. A “primary caregiver” if “otherwise permitted” is limited to 12 plants total residentially, or more than 24 regardless of the number of residents, temporary or not, a the property. Requirements for the 12-24 plant grow must be met,
Section 8.6 appears to contain an error in drafting, and appears to say the opposite of what was intended. It appears to have meant (but does not say) that grows over 24 plants if not otherwise prohibited must meet requirements including registration with the state.

CONCLUSION:

1. The new law appears flawed to me in that it contradicts the state constitution and contradicts other sections of the present marijuana laws contained in C.R.S. 18-18-406.
Possible penalties under the general section are as follows: Note this is a “general chart.” CHART 1

Plant Count Penalties

New Legislation: PLANT COUNT NEW LEGISLATION, SIGNED INTO LAW, EFFECTIVE 1/1/2018

HOUSE BILL 17-1220 BY REPRESENTATIVE(S) Becker K. and Wist, Carver, Esgar, Landgraf, Lawrence, Pabon, Thurlow, Van Winkle, Young, Arndt, Beckman, Covarrubias, Garnett, Ginal, Liston, Lundeen, McKean, Navarro, Nordberg, Pettersen, Ransom, Sias, Willett, Wilson, Gray, Hamner, Hooton, Kennedy, Kraft-Tharp, Neville P., Valdez, Williams D., Duran; also SENATOR(S) Gardner and Fields, Priola, Cooke, Court, Crowder, Hill, Holbert, Lambert, Martinez Humenik, Neville T., Smallwood, Tate, Todd, Williams A., Grantham.
CONCERNING MEASURES TO STOP DIVERSION OF LEGAL MARIJUANA TO THE ILLEGAL MARKET.

Be it enacted by the General Assembly of the State of Colorado: SECTION I. Legislative declaration.

(1) The general assembly finds and declares that:
(a) Through citizen-initiated measures, Colorado provided its citizens protections for the cultivation and use of medical marijuana in 2000 and recreational marijuana in 2012;
(b) One of the reasons behind these citizen-initiated measures was to erode the black market for marijuana in Colorado; Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act.
(c) The constitutional provisions for both medical marijuana and recreational marijuana provide protections for personal marijuana cultivation, but these provisions are silent on the question of where marijuana plants may be grown or processed for medical or recreational use;
(d) Although the authority for marijuana cultivation for both medical and recreational marijuana is generally limited to six plants per person, some provisions allow individuals to grow more plants. In the medical marijuana code, a patient can grow an “extended plant count” if his or her physician, who makes the medical marijuana recommendation, also determines the patient has a medical necessity for more than six plants. As well, a primary caregiver can grow medical marijuana for each of the patients that he or she serves.
(e) The extended plant count and primary caregiver provisions have created a situation in which individuals are cultivating large quantities of marijuana in residential homes;
(f) These large-scale cultivation sites in residential properties create a public safety issue and are a public nuisance. A site in a residential property can overburden the home’s electrical system, resulting in excessive power use and creating a fire hazard that puts first responders at risk. A site can also cause water damage and mold in the residential property. A site in a residential property can produce a noxious smell that limits the ability of others who live in the area to enjoy the quiet of their homes. Often the site is a rental home, and the renters cause significant damage to the home by retrofitting the home to be used as a large-scale cultivation site. When residential property is used for a large-scale cultivation site, it often lowers the value of the property and thus the property value of the rest of the neighborhood. Finally, a site in a residential property can serve as a target for criminal activity, creating an untenable public safety hazard.
(g) Large-scale, multi-national crime organizations have exploited Colorado laws, rented multiple residential properties for large-scale cultivation sites, and caused an influx of human trafficking and large amounts of weapons as well as the potential for violent crimes in residential neighborhoods;
(h) Large-scale cultivation sites in residential properties have been used to divert marijuana out of state and to children.

(2) Therefore, the general assembly determines that it is necessary to impose reasonable limits on residential marijuana cultivation that do not encroach on the protections afforded Colorado citizens in the Colorado constitution.

SECTION 2. In Colorado Revised Statutes, 18-18-406, amend
(3)(a); and add (3)(c) as follows:
18-18-406. Offenses relating to marijuana and marijuana concentrate – definition. (3) (a) (I) It is unlawful for a person to knowingly cultivate, grow, or produce a marijuana plant or knowingly allow a marijuana plant to be cultivated, grown, or produced on land that the person owns, occupies, or controls. (II) (A) REGARDLESS OF WHETHER THE PLANTS ARE FOR MEDICAL OR RECREATIONAL USE, IT IS UNLAWFUL FOR A PERSON TO KNOWINGLY CULTIVATE, GROW, OR PRODUCE MORE THAN TWELVE MARIJUANA PLANTS ON OR IN A RESIDENTIAL PROPERTY; OR TO KNOWINGLY ALLOW MORE THAN TWELVE MARIJUANA PLANTS TO BE CULTIVATED, GROWN, OR PRODUCED ON OR IN A RESIDENTIAL PROPERTY. (B) EXCEPT AS PROVIDED IN SECTION 25-1.5-106 (8.5)(a.5)(I) OR SECTION 25-1.5-106 (8.6)(a)(I.5) FOR A MEDICAL MARIJUANA PATIENT OR A PRIMARY CAREGIVER WITH A TWENTY-FOUR-MARIJUANA-PLANT-COUNT EXCEPTION TO SUBSECTION (3)(a)(II)(A) OF THIS SECTION, IT IS NOT A VIOLATION OF SUBSECTION (3)(a)(II)(A) OF THIS SECTION IF A COUNTY, MUNICIPALITY, OR CITY AND COUNTY LAW EXPRESSLY PERMITS THE CULTIVATION, GROWTH, OR PRODUCTION OF MORE THAN TWELVE MARIJUANA PLANTS ON OR IN A RESIDENTIAL PROPERTY AND THE PERSON IS CULTIVATING, GROWING, OR PRODUCING THE PLANTS IN AN ENCLOSED AND LOCKED SPACE AND WITHIN THE LIMIT SET BY THE COUNTY, MUNICIPALITY, OR CITY AND COUNTY WHERE THE PLANTS ARE LOCATED. (III) A person who violates the provisions of this su scc (3) SUBSECTION (3)(a)(I) OF THIS SECTION commits: (I) (A) A level 3 drug felony if the offense involves more than thirty PAGE 3-HOUSE BILL 17-1220 plants; (H) (B) A level 4 drug felony if the offense involves more than six but not more than thirty plants; or (III) (C) A level 1 drug misdemeanor if the offense involves not more than six plants. (IV) A PERSON WHO VIOLATES THE PROVISIONS OF SUBSECTION (3)(a)(II)(A) OF THIS SECTION COMMITS: (A) A LEVEL 1 DRUG PETTY OFFENSE FOR A FIRST OFFENSE IF THE OFFENSE INVOLVES MORE THAN TWELVE PLANTS, AND, UPON CONVICTION, SHALL BE PUNISHED BY A FINE OF UP TO ONE THOUSAND DOLLARS; (B) A LEVEL 1 DRUG MISDEMEANOR FORA SECOND OR SUBSEQUENT OFFENSE IF THE OFFENSE INVOLVES MORE THAN TWELVE BUT NOT MORE THAN TWENTY-FOUR PLANTS; OR (C) A LEVEL 3 DRUG FELONY FOR A SECOND OR SUBSEQUENT OFFENSE IF THE OFFENSE INVOLVES MORE THAN TWENTY-FOUR PLANTS. (V) PROSECUTION UNDER SUBSECTION (3)(a)(II)(A) OF THIS SECTION DOES NOT PROHIBIT PROSECUTION UNDER ANY OTHER SECTION OF LAW. (c) FOR PURPOSES OF THIS SUBSECTION (3): (I) “FLOWERING” MEANS THE REPRODUCTIVE STATE OF THE CANNABIS PLANT IN WHICH THERE ARE PHYSICAL SIGNS OF FLOWER BUDDING OUT OF THE NODES IN THE STEM. (II) “PLANT” MEANS ANY CANNABIS PLANT IN A CULTIVATING MEDIUM WHICH PLANT IS MORE THAN FOUR INCHES WIDE OR FOUR INCHES HIGH OR A FLOWERING CANNABIS PLANT REGARDLESS OF THE PLANT’S SIZE. (III) “RESIDENTIAL PROPERTY” MEANS A SINGLE UNIT PROVIDING COMPLETE INDEPENDENT LIVING FACILITIES FOR ONE OR MORE PERSONS, INCLUDING PERMANENT PROVISIONS FOR LIVING, SLEEPING, EATING, COOKING, AND SANITATION. “RESIDENTIAL PROPERTY” ALSO INCLUDES THE REAL PROPERTY SURROUNDING A STRUCTURE, OWNED IN COMMON WITH PAGE 4-HOUSE BILL 17-1220 THE STRUCTURE, THAT INCLUDES ONE OR MORE SINGLE UNITS PROVIDING COMPLETE INDEPENDENT LIVING FACILITIES. SECTION 3. In Colorado Revised Statutes, 25-1.5-106, amend (7)(e)(I)(A); and add (2)(e.3), (8.5)(a.5), (8.5)(b.5), (8.6)(a)(I.5), and (8.6)(a)(I.6) as follows: 25-1.5-106. Medical marijuana program – powers and duties of state health agency – rules – medical review board – medical marijuana program cash fund – subaccount – created – repeal. (2) Definitions. In addition to the definitions set forth in section 14 (1) of article XVIII of the state constitution, as used in this section, unless the context otherwise requires: (e.3) “RESIDENTIAL PROPERTY” MEANS A SINGLE UNIT PROVIDING COMPLETE INDEPENDENT LIVING FACILITIES FOR ONE OR MORE PERSONS, INCLUDING PERMANENT PROVISIONS FOR LIVING, SLEEPING, EATING, COOKING, AND SANITATION. “RESIDENTIAL PROPERTY” ALSO INCLUDES THE REAL PROPERTY SURROUNDING A STRUCTURE, OWNED IN COMMON WITH THE STRUCTURE, THAT INCLUDES ONE OR MORE SINGLE UNITS PROVIDING COMPLETE INDEPENDENT LIVING FACILITIES. (7) Primary caregivers. (e) (I) (A) In order to be a primary caregiver who cultivates medical marijuana for his or her patients or transports medical marijuana for his or her patients, he or she shall also register with the state licensing authority AND COMPLY WITH ALL LOCAL LAWS, REGULATIONS, AND ZONING AND USE RESTRICTIONS. A person may not register as a primary caregiver if he or she is licensed as a medical marijuana business as described in part 4 of article 43.3 of title 12 . . ., or a retail marijuana business as described in part 4 of article 43.4 of title 12. C.R.S. An employee, contractor, or other support staff employed by a licensed entity pursuant to article 43.3 or 43.4 of title 12, C.R.S., or working in or having access to a restricted area of a licensed premises pursuant to article 43.3 or 43.4 of title 12, C.R.S., may be a primary caregiver. (8.5) Encourage patient voluntary registration – plant limits. (a.5) (I) UNLESS OTHERWISE EXPRESSLY AUTHORIZED BY LOCAL LAW, IT IS UNLAWFUL FORA PATIENT TO POSSESS AT OR CULTIVATE ON A RESIDENTIAL PROPERTY MORE THAN TWELVE MARIJUANA PLANTS REGARDLESS OF THE PAGE 5-HOUSE BILL 17-1220 NUMBER OF PERSONS RESIDING, EITHER TEMPORARILY OR PERMANENTLY, AT THE PROPERTY; EXCEPT THAT IT IS UNLAWFUL FOR A PATIENT TO POSSESS AT OR CULTIVATE ON OR IN A RESIDENTIAL PROPERTY MORE THAN TWENTY-FOUR MARIJUANA PLANTS REGARDLESS OF THE NUMBER OF PERSONS RESIDING, EITHER TEMPORARILY OR PERMANENTLY, AT THE PROPERTY IF A PATIENT: (A) LIVES IN A COUNTY, MUNICIPALITY, OR CITY AND COUNTY THAT DOES NOT LIMIT THE NUMBER OF MARIJUANA PLANTS THAT MAY BE GROWN ON OR IN A RESIDENTIAL PROPERTY; (13) REGISTERS PURSUANT TO THIS SUBSECTION (8.5) WITH THE STATE LICENSING AUTHORITY’S REGISTRY; AND (C) PROVIDES NOTICE TO THE APPLICABLE COUNTY, MUNICIPALITY, OR CITY AND COUNTY OF HIS OR HER RESIDENTIAL CULTIVATION OPERATION IF REQUIRED BY THE JURISDICTION. A LOCAL JURISDICTION SHALL NOT PROVIDE THE INFORMATION PROVIDED TO IT PURSUANT TO THIS SUBSECTION (8.5)(a.5)(I)(C) TO THE PUBLIC, AND THE INFORMATION IS CONFIDENTIAL. (II) A PA IENT WHO CULTIVATES MORE MARIJUANA PLANTS THAN PERMITTED IN SUBSECTION (8.5)(a.5)(I) OF THIS SECTION SHALL LOCATE HIS OR HER CULTIVATION OPERATION ON A PROPERTY, OTHER THAN A RESIDENTIAL PROPERTY, WHERE MARIJUANA CULTIVATION IS ALLOWED BY LOCAL LAW AND SHALL COMPLY WITH ANY APPLICABLE LOCAL LAW REQUIRING DISCLOSURE ABOUT THE CULTIVATION OPERATION. CULTIVATION OPERATIONS CONDUCTED IN A LOCATION OTHER THAN A RESIDENTIAL PROPERTY ARE SUBJECT TO ANY COUNTY AND MUNICIPAL BUILDING AND PUBLIC HEALTH INSPECTION REQUIRED BY LOCAL LAW. A PERSON WHO VIOLATES THIS SUBSECTION (8.5)(a.5) IS SUBJECT TO THE OFFENSES AND PENALTIES DESCRIBED IN SECTION 18-18-406. (b.5) A PATIENT WHO CULTIVATES HIS OR HER OWN MEDICAL MARIJUANA PLANTS SHALL COMPLY WITH ALL LOCAL LAWS, REGULATIONS, AND ZONING AND USE RESTRICTIONS. (8.6) Primary caregivers plant limits – exceptional circumstances. (a) (I.5) UNLESS OTHERWISE EXPRESSLY AUTHORIZED BY LOCAL LAW, IT IS UNLAWFUL FOR A PRIMARY CAREGIVER TO POSSESS AT OR CULTIVATE ON A RESIDENTIAL PROPERTY MORE THAN TWELVE MARIJUANA PAGE 6-HOUSE BILL 17-1220 PLANTS REGARDLESS OF THE NUMBER OF PERSONS RESIDING, EITHER TEMPORARILY OR PERMANENTLY, AT THE PROPERTY; EXCEPT THAT IT IS UNLAWFUL FOR A PRIMARY CAREGIVER TO POSSESS AT OR CULTIVATE ON OR IN A RESIDENTIAL PROPERTY MORE THAN TWENTY-FOUR MARIJUANA PLANTS REGARDLESS OF THE NUMBER OF PERSONS RESIDING, EITHER TEMPORARILY OR PERMANENTLY, AT THE PROPERTY IF A PRIMARY CAREGIVER: (A) LIVES IN A COUNTY, MUNICIPALITY, OR CITY AND COUNTY THAT DOES NOT LIMIT THE NUMBER OF MARIJUANA PLANTS THAT MAY BE GROWN ON OR IN A RESIDENTIAL PROPERTY; (B) Is REGISTERED PURSUANT TO THIS SUBSECTION (8.6) WITH THE STATE LICENSING AUTHORITY’S REGISTRY; AND (C) PROVIDES NOTICE TO THE APPLICABLE COUNTY, MUNICIPALITY, OR CITY AND COUNTY OF HIS OR HER RESIDENTIAL CULTIVATION OPERATION IF REQUIRED BY THE JURISDICTION. A LOCAL JURISDICTION SHALL NOT PROVIDE THE INFORMATION PROVIDED TO IT PURSUANT TO THIS SUBSECTION (8.6)(a)(I.5) TO THE PUBLIC, AND THE INFORMATION IS CONFIDENTIAL. (1.6) ANY PRIMARY CAREGIVER WHO CULTIVATES MORE MARIJUANA PLANTS THAN PERMI ri ED IN SUBSECTION (8.6)(a)(I.5) OF THIS SECTION SHALL LOCATE HIS OR HER CULTIVATION OPERATION ON A PROPERTY, OTHER THAN A RESIDENTIAL PROPERTY, WHERE MARIJUANA CULTIVATION IS ALLOWED BY LOCAL LAW AND SHALL COMPLY WITH ANY APPLICABLE LOCAL LAW REQUIRING DISCLOSURE ABOUT THE CULTIVATION OPERATION. CULTIVATION OPERATIONS CONDUCTED IN A LOCATION OTHER THAN A RESIDENTIAL PROPERTY ARE SUBJECT TO ANY COUNTY AND MUNICIPAL BUILDING AND PUBLIC HEALTH INSPECTION REQUIRED BY LOCAL LAW. A PERSON WHO VIOLATES SUBSECTION (8.6)(a)(I) OF THIS SECTION IS SUBJECT TO THE OFFENSES AND PENALTIES DESCRIBED IN SECTION 18-18-406. SECTION 4. Act subject to petition – effective date – applicability. (1) This act takes effect January 1, 2018; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2018 and, in such case, will take effect on the date of the official declaration of the vote thereon by the PAGE 7-HOUSE BILL 17-1220 Kevin J. Grantham PRESIDENT OF THE SENATE 0 W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO APPROVED ‘ Marilyn Ed CHIEF CLERK OF THE HOUSE OF REPRESENTATIVES Effie Ameen SECRETARY OF THE SENATE (2) Section 2 of this act applies to offenses committed on or after the applicable effective date of this act. Crisanta Duran SPEAKER OF THE HOUSE OF REPRESENTATIVES PAGE 8-HOUSE BILL 17-1220

Relevant citations include: i C.R.S. 18-1.3-401(5) ii C.R.S. 18-19-103 (1), (2), (6) surcharge can only be waived for the amount defendant shows by clear and convincing evidence he cannot pay. iii C.R.S. 18-1.3-401(.5), offenses on or after 10/1/2013 [2 prior felonies, minimum sentence is minimum prison] iv C.R.S. 18-1.3-501(1)(d) v C.R.S. 18-1.3-501(1)(e)

Blood test results for active THC delta 9 and for THC COOH and what that means

©Leonard Frieling 2018 Lafayette, Colorado

THC COOH (pronounced carboxy THC) is a metabolite of THC delta 9, the psychoactive cannabinoid in pot. THC delta 9 is commonly referred to as just THC, and the carboxy commonly referred to as THC COOH.
The COOH metabolite (made by the body FROM the active THC) takes a few hours to become present and detectable, and is thus arguably exculpatory. It is not psychoactive.
It is the chemical that for years, and in employment and other contexts has been the subject of the urine tests, and can be found for days, weeks, or even 105 days (longest I’ve read of).
Being lipid (fat) soluble it is the THC COOH that is stored in the fat cells and hangs around for a long time. Since urine sampling and testing is cheap and simple, an employer can use it to fire someone,
even though the smoking may have been only on Friday nights with no employment until Monday, and never within any possible impairing time of work.

Impairment generally is gone after 3-5 hours in most people. Some regular smokers (vaporizing being a better alternative) show levels of ACTIVE THC and no impairment days after not smoking.
While some experiments have shown 0.5 ng/ml active whole blood after a day or two, and up to 1.5 ng/ml active THC in blood after 5 days, and some claim much higher numbers after even more time,
I believe no respected researcher claims impairment after 6-8 hours. Also remember that degree of impairment, while it increases with greater intake, does NOT correlate to level of impairment.
A person with 5 ng/ml active THC whole blood (which is what our current (Colorado) law looks at, with NO mention of COOH) might not be impaired at all, while another might be impaired at 3 ng/ml.
It seems to vary with many things including the experience of the smoker. In other words, if a person smokes one joint, and is impaired, they will be more impaired after two joints.
But the blood-THC measure does not tell us whether or not they are impaired, or how impaired they might or might not be.

For alcohol, drink twice as much and you are more impaired. AND we can say some things about impairment based upon the blood level generally, with the information having meaning for people in
general; not just for a specific individual.

With pot, I think there are several factors. First, the max impairment occurs after (30 minutes to 1 1/2 hours) smoking/vaping. Active THC in blood peaks VERY VERY fast, reaching peak levels
within minutes of smoking a joint. It also DROPS very very fast in blood. Thus, the blood peaks long before the impairment peaks. This is referred to as counterclockwise hysteresis.
Second, as I said, the same number (active THC in blood) does not correlate to the same impairment in two different people.

There are some (not generally accepted stuff) who will testify that the ratio of COOH to psychoative THC delta 9, tells something about recency of smoking. That is utter crap.
WAY too many unknowns are missing, and would be necessary to draw such a conclusion.

In court, I have filed and will continue to file, when appropriate, a motion in limine to keep the COOH result excluded entirely since it has zero probative value. It is the same as a prosecutor
saying this defendant had wine within the last weeks or months, we don’t know when, we don’t know how much, and you should consider that in determining whether they were impaired by wine on the date/time of the charged offense.
That would never be permitted and this is no different.

If your active THC # is low enough, that supports the argument that it might have been higher earlier, and the COOH indicates that it had to be hours earlier for the COOH to be made from the
THC delta 9 THC, so the smoking had to be at least hours earlier, OR maybe days or weeks earlier, but you can’t get COOH until at least hours after the active THC is introduced into the body.

In addition, a side issue I’m dealing with.

When we have a second sample of our clients’s blood picked up from a state lab for testing by our private lab, that testing and the request for the sample should never be available to a jury.
If the request is in writing, as it normally would be, without protective steps, the litigation packet from the state lab may well include the defense request for the second sample.
That cannot be permitted, since the second test may be higher than the state’s test, or may confirm the State’s test. There are a number of strategies to avoid this problem.

Debunking Scientific Studies on Marijuana

How to Evaluate Studies on Marijuana Medically and Otherwise

©Leonard Frieling 2018 Lafayette, Colorado

 

We are bombarded by press touting studies which purport to show wonderful benefits provided by marijuana. We are similarly bombarded by studies which present alleged dangers associated with marijuana use. How do we evaluate studies? Do we want rely upon in debates and discussions; studies to parade at rallies which say what we want, regardless of the scientific validity of the work? Personally I am a fan of intellectual honesty first and politics second. Let the facts drive the politics. Let the science guide the law.

On politically charged subjects like marijuana and firearms for example, the disparity in study conclusions is radical.

How does someone tell how much weight should be given to a study and its conclusions? How do we evaluate studies? Scientists have specific mathematical tools for evaluating study reliability. For most of us, these technical validity instruments are beyond our skill sets. But there are many ways to help us evaluate studies without the experience and education needed to utilize the sophisticated tools available to scientist. This topic will be covered in a series of blogs, since it is complex and worthy of study.

First, is the study a “meta-study” or a “study?” A study deals with obtaining new data and analyzing the new data. A Meta-study is one in which no new data is obtained and no new experiments are done. Instead, previous studies are re-analyzed. The raw data is re-examined in light of the other studies being examined, and “new” conclusions are drawn.

Meta-studies, while not without value, should be viewed differently. First, while at first glance they may appear to be, and may be presented as new studies, they are not. They are in many ways, old news re-runs.

That leads directly to a major problem in trying to track marijuana science by reading the newspapers. It is common to see an old and frequently weak study be trotted out as “new.” In fact, GIGO, “garbage in garbage out” is the fact. A weak study does not become a strong study because it has aged.

Second, who did the study? Who financed the study? It is no surprise that the studies glommed onto by law enforcement organizations, some police chiefs, and others, were financed or conducted by, written by, or interrupted by law enforcement or by other groups who potentially have agendas. Science and politics should not be the same thing. While science may guide legislation, study outcomes should not be results-driven. A study should not be undertaken if the goal from the outset is to prove that marijuana is harmful, or that it is not harmful.

Finally, in the “Big Three,” studies will generally end with statements suggesting what future research is needed or suggested. While many like to say “we need to study this more,” the reality is that while additional study is almost always good, the implied lack of historical studies is frequently the opposite of the truth. Studies should lead to more questions. That does not mean that the study provides no answers or guidance.

For example, the oft-repeated chant “we need more studies” regarding marijuana medically and otherwise is true. What it implies, that we don’t have many studies already, is the opposite of the truth. For example, pubmed.gov is an index of studies in the medical fields. Some are available free, while others provide a free summary and the ability to purchase the full study. Search pubmed for “aspirin” and 63,000+ studies are listed. Search for “marijuana” and 29,000+ results are available on this site. This makes two points. First, those that argue “we haven’t studied marijuana enough” are ignoring the fact that there may be almost half as many studies as for aspirin. Additionally the sheer number of the published studies on pubmed for marijuana is huge. Of course we need more study. And we simply cannot ignore the vast body of what has already been studied. More studies are needed in astrophysics. Does that suggest we know nothing currently?

What is the population studied? Is it ten subjects or 10,000? Is it over a period of a month or a longitudinal study over decades or even over generations? What is the source of the population? Are they properly screened for drug history or does the study rely upon the subjects accurately reporting their drug use, past and present? At least two studies which keep surfacing in the press persist in claiming damaging mental health from marijuana use. Both studies focus on a population suffering from severe mental illness.

Final suggestion for this Part I: READ THE STUDIES. While some are quite challenging and involve complex use of statistical analysis and extremely challenging vocabulary, many are sufficiently accessible so that even without understanding every word, reading the study is well worth the effort.