Dispensary Discord: 

Restriction of Medical Patients 18-20 Years Old in Co-Located Facilities

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Introduction

Marijuana’s role in Colorado was borne of the will of the people. Amendment 20 first legalized medical marijuana in 2000. The program stayed fairly small because the Department of Health and Human Services interpreted a 5 plant limit per caregiver. A Denver District Judge overruled the limit in 2007 and two years later the Ogden Memo, which advised state attorneys to de-prioritize federal restrictions on marijuana, rapidly increased the industry’s growth. In 2010, the state legislature passed HB10-1284 which created long-needed regulation, allowed cities to enact their own bans, and created the new Medical Marijuana Enforcement Division of the Department of Revenue (History of Colorado’s Medical Marijuana Laws.) 

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When Amendment 64 legalized recreational marijuana two years later, its regulation was not just informed by, but harmonized with the existing medical marijuana framework. (Office of Legislative Legal Services, Retail Code.) MMED expanded into the more general Marijuana Enforcement Division (History of Colorado’s Medical Marijuana Laws.) Early policy heavily emphasized that any actions relating to Amendment 64 were still illegal federally (Office of Legislative Legal Services, Retail Code,) a legal area that has not become more clear over time. 

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The third sunset review of medical marijuana regulation and the second of recreational marijuana is scheduled for 2019 (Retail Marijuana Sunset.) Despite its 2015 sunset review, recreational marijuana regulation is still riddled with inconsistencies. One such policy prohibits medical patients under 21 from entering a retail marijuana facility. Though co-located facilities must maintain separate inventories and points-of-sale, co-located facilities that want to sell to medical patients under 21 must also have separate entrances/exits and sales floors. Though the separation enables accurate taxation, there are no required differences between medical and recreational marijuana products (Department of Revenue.) So why does Colorado require co-located facilities that sell to medical marijuana patients under 21 have separate entrances/exits and sales floors, when co-located facilities selling to medical marijuana patients over 21 do not?

 

Tracing the policy from its formation and through the legislative process to present time as well as examining whether or not other states adopted the policy generates useful insight towards how Colorado’s marijuana policy process is influenced by bounded rationality theory, the advocacy coalition framework, and diffusion.  

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Rationale

The literature on marijuana policy is sparse, especially given it was legalized recently and in a minority of states. Accounts of the policy process to regulate marijuana are especially important because their insight can be passed along to the many other states likely to legalize marijuana over the next few years (Angell.) Further, this policy represents the harmonization of new recreational marijuana regulation with an existing medical marijuana framework. In every state where recreational marijuana is legal, medical marijuana was legal first (Wallace.) 

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An understanding of how bounded rationality theory applies to Colorado’s regulatory actors should help inform the best-practice administrative science advocated by Simon (qtd. in Cairney, 98.) We can also extrapolate, to an extent, the behavior of Colorado’s rulemakers because both measures passed through amendment (Wallace.) When a bill is passed by amendment or imitative, the motivations of a majority of legislators may not align with the intent of the bill, which may affect the way they create its regulation. 

 

States emulate other states’ policies, often as a rule of thumb shortcut (Cairney, 247.) Indeed, as one of the first states to legalize recreational marijuana, many of Colorado’s policies diffused to other states (Sanchez and Martinez.) As a frontrunner in the marijuana movement, Colorado has a responsibility to export good policy. Examining which states adopted this particular policy and why they did so provides a useful measure to evaluate Colorado’s marijuana policy process. States that did not adopt the policy could be used as a case study to assess the alternative outcome, allowing medical patients equal access to retail marijuana stores regardless of age. 

 

It is also important to look at who participated in the formation and evaluation of these policies. The recreational marijuana recommendations passed along to legislators were created by the Amendment 64 Task Force, which consisted of 26 members ranging from state senators to a representative for the Colorado Municipal League (Task Force Report.) These actors can best be understood through the advocacy coalition framework, which is based on the inclusion of many different types of stakeholders (Cairney, 203.) The ACF can also be broadened to a national level, where the federal government becomes a vocal, dissident actor under the current administration (Roberts.) This discussion provides both context for the current climate as well as hypotheses about the future legality of marijuana in states.  

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Methods

I traced the policy as closely to its origin as possible.  The Amendment 64 Task Force, which convened in March of 2013 and published a 165 page report, was the furthest back I found. The report explains task force meetings were open to the public and included time for public comment (Task Force Report.) I have a pending Colorado Open Records Act request for records of testimony and/or meeting agendas.  I also referenced the Department of Revenue’s Retail and Medical Marijuana Code as well as reporting from both popular media and cannabis-focused publications, like Westword. 

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I also accessed audio recordings from the Amendment 64 Implementation Select Joint Committee of the 66th General Assembly. The recommendation was postponed 3 separate times before it was brought to the floor on April 5, where the majority of dialogue occurred between Representative Brian DelGrosso and Senator Vicki Marble. I examined the language and arguments used in their discussion in the context of both bounded rationality theory and ACF. 

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To assess the diffusion of the policy, I examined co-located dispensary policy in the six other states where both recreational and medical marijuana are legal: Alaska, California, Massachusetts, Nevada, Oregon, and Washington (Wallace.)  Not all states clarified their legal position on 18-20 year old medical patients on their websites and in those cases, I referenced policy analysis publications.

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Findings

Assessment of Task Force 

While the task force was chaired by two members of the executive branch, they appointed a diverse membership with representatives from the legislative and judicial branches, executive agencies, consumers, industry, law, and labor. Task force membership is listed in Figure 1 and the “Regulatory Framework” working group membership is listed in Appendix D. 

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The report explicitly states that all members were to accept the “will of the voter” and refrain from debate on legalization. While this unites them under a policy belief, it also implies that the membership did not all share the deep core belief that recreational marijuana should have been legalized (Cairney, 205.)  

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The demographic the particular co-location restriction affects, young medical marijuana patients, were likely not represented well by the single representative each appointed for the medical marijuana industry and marijuana consumers (Task Force Report.) Young citizens do not turn out to meetings for public comment at high rates (Benedict-Nelson) and given the general level of expertise each member appears to possess, it is unlikely that close to the 18-20 year old demographic would be selected (Task Force Report.) Further, there is no organized group to represent this coalition. It is likely that the demographic’s interests were not represented in the task force.  

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The task force is structured so that it identifies nine guiding principles and specifies which apply to each sub-section. Recommendation 5.5 on “Complete Separation in Dual-Use Medical and Retail” identifies safeguarding the health and safety of youth, making regulation reasonable and not burdensome, creating clarity about state versus local licensing, and remaining faithful to Amendment 64. The application of this first principle is especially evident in the “Justification” section which describes that “premises must be separated to reduce the risk of underage consumption by people who are not properly registered patients,” though the document does not identify what those risks are. An argument of separation of point of sale and inventory between medical and retail of all co-located facilities follows (Task Force Report.) 

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In a later section, the report clarifies that all retail customers are required to show a valid, government-issued 21+ ID (Task Force Report.) The Medical Code already requires patients submit both a valid, government-issued ID and their official medical marijuana license. There were already strict standards in place about secure outside doors and reception areas (Office of Legislative Legal Services, Medical Code.)

 

Amendment 64 Implementation Select Joint Committee 

The strongest argument that the policy was motivated by rational constraints is summed up in Rep. DelGrossos’s introduction of the bill, “No one can enter a retail facility that isn’t 21. That just makes it easy, clear, cut, dry. That’s the premise of this amendment.” His haste is further justified by the fact that the committee has already asked for an extension to finish its work, as summarized by Committee Chair and Rep. Dan Pabon at the beginning of the meeting (DelGrosso and Marble.) 

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Sen. Vicki Marble is the only member to discuss the bill. She explains that she “doesn’t see it would be a big problem.” Marble uses both the liquor store she owns and Walmart as examples of facilities that sell age-restricted products but do not restrict entry. She believes the point-of-sale handles ID checks in a way that promotes lawful purchasing. DelGrosso counters that retail marijuana stores will never sell products other than marijuana, which medical patients could purchase at their own designated dispensaries. Marble touches on the idea that medical and recreational marijuana are the same product, but empathizes with the desire to keep marijuana away from youth, one of the top priorities of the ACF who developed the original recommendations. One member clarifies that 21+ medical may co-locate without addition restrictions. DelGrosso appeases Marble with a conceptual amendment to review the policy during the sunset review and it passes (DelGrosso and Marble.) This open attitude towards maintaining recommendations but revising over time appears incremental. 

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Diffusion Across States

Two out of the six states with dual legalization restrict medical patients under 21 like Colorado does (Alcohol and Marijuana Control Force.) Alaska’s regulatory body explains its policy is derived from Colorado’s, Washington’s, and the state’s liquor laws (Marijuana Regulations Public Commentary.) They do not identify specific reasoning for keeping the policy restriction. Information for California was less accessible, but the state appears motivated to maintain distinct separation between the recreational and medical industries (Bricken.)

Washington, which legalized the same year as Colorado, clearly specified medical patients’ access to retail marijuana stores: 18-20 years old allowed with valid medical license, under 18 only allowed with valid medical license and a provider, who purchases for the patient. They recommend staff receive training on checking IDs and licenses and check them both at the point of entry and sale. Documentation also identifies the primary difference between recreational and medical access as the ability to purchase high-THC content on the medical side (Washington State Liquor and Cannabis Board.)

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Three other states, Massachusetts, Oregon, and Nevada emulated Washington’s choice (Cannabis Control Commission, Oregon Liquor Control Commission, Cormier.) Oregon specifies this especially clearly and adds its specific regulatory differences between medical and recreational marijuana below, which regard the higher allowed potency of medical-grade edibles (Oregon Liquor Control Commission.) Nevada’s policy was least clear, although its industry appears to prize medical over recreational customers, offering them expedited and increased access to dispensaries. One dispensary owner in Vegas references a notable incident in Colorado as an example for his own business strategy (Cormier.)

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The policy diffusion is certainly voluntary emulation, guided by faith in Colorado government to formulate quality policy. One potential explanation for diffusion as discussed by Cairney is that urban states are more receptive to change and new policy (247.) The states that have legalized are relatively urban and blue/purple, which offers traits that could be used to predict which states may legalize next. The sample size is to small to draw conclusions, but offers a tentative trend towards Washington’s more open policy diffusing as opposed to Colorado’s restrictive policy.  

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Conclusion

The primary reason Colorado legislators decided to prohibit medical patients under 21 from co-located facilities was bounded rationality; they simply thought it was easier to abide verbatim by Amendment 64 without discretion. The policy was formulated and maintained by a fairly stable advocacy coalition that does not include anyone to represent the interests of medical patients under 21 and no entity has organized to challenge the dominant coalition. That this policy has not spread to most dual-legalization states implies it may not be the most effective policy to address the ultimate goal of only selling to licensed or of-age patients.

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Understanding that policy inconsistencies like this occur with greater frequency when constraints are increased advances an argument for providing state legislatures and other rule makers with more time than the Colorado legislators had when harmonizing regulation. 

 

Access for underage medical patients must be sufficient and the revenue non-compliant, co-located facilities lose out on insufficient for the issue to not have been challenged in Colorado. Further, the lack of reaction to the policy’s exclusion from the 2015 sunset review reinforces the idea that the affected demographic as a whole does not seem overly concerned. However, in line with the original task force’s own principle seeking to create regulation that was not unduly burdensome, reevaluating these inconsistencies take a proactive step towards improving access for patients, especially those living outside metropolitan areas with heavier concentrations of dispensaries.

 

As it is likely that more and more states will continue to legalize both medical and recreational marijuana, understanding how to create the most efficient, equitable marijuana policy possible could help dozens of other states transition safely and smoothly. States like Colorado would certainly be models for federal legalization, should it come to fruition under a new presidential administration. 

 

While the policy appears to have been created based on assumptions, fear, and laziness, a lack of vocal opposition and wide understanding of its impacts means it is unlikely to change at this point in time. A policy entrepreneur, whether affected private citizen or profit-motivated dispensary owner, certainly has the power to change that. 

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Works Cited

Alcohol and Marijuana Control Force. “Regulations for the Marijuana Control Board.” Alcohol and Marijuana Control Office, Alaska Department of Commerce, Community, and Economic Development. 7 Mar. 2018. PDF. https://www.commerce.alaska.gov/web/Portals/9/pub/MCB/StatutesAndRegulations/Mari juanaRegulations.pdf Accessed 24 Apr. 2018. 

 

Angell, Tom. “These States Are Likely to Legalize Marijuana in 2018.” Forbes, 26 Dec. 2017. https://www.forbes.com/sites/tomangell/2017/12/26/these-states-are-likely-to-legalize-marijuana-in-2018/#748afb121032 Accessed 7 May 2018. 

 

Benedict-Nelson, Andrew. “Young People and Political Engagement.” Pew Research Center, 16 July 2018. http://www.pewresearch.org/2012/07/16/ask-the-expert-young-people-and-political-engagement/ Accessed 7 May 2018. 

 

Bricken, Hilary. “California Set to Harmonize Recreational and Medical Marijuana Laws.”
Above the Law , 24 Apr. 2017. https://abovethelaw.com/2017/04/california-set-to-harmonize-recreational-and-medical-marijuana-laws/ Accessed 24 Apr. 2018. 

 

Cairney, Paul. Understanding Public Policy Theories and Issues. New York, Palgrave Macmillan, 2012. 

Cannabis Control Commission. “Adult Use of Marijuana.” State of Massachusetts, 23 Mar. 2018. https://mass-cannabis-control.com/wp-content/uploads/2018/03/Reposted-031218-CCC- Final-Regulations-with-disclaimer.pdf Accessed 24 Apr. 2018.

 

Cormier, Nicole. “Being a Medical Marijuana Patient in the Times of Recreational Cannabis.” Vegas Even, 19 Jun. 2017. http://vegasseven.com/2017/06/19/medical-marijuana-patient-times-recreational-cannabi s/ Accessed 24 Apr. 2018. 

 

DelGrosso, Brian and Vicki Marble. Meeting of Select Committee Amendment 64 Implementation Committee, Colorado General Assembly, 5 Apr. 2013, Colorado Capitol, Denver, CO. Legislative committee meeting. 

 

“History of Colorado’s Medical Marijuana Laws.” Sensible Colorado. http://sensiblecolorado.org/history-of-co-medical-marijuana-laws/ Accessed 24 Apr. 2018. 

 

“Marijuana Regulations Public Commentary.” Alcohol and Marijuana Control Office, Alaska Department of Commerce, Community, and Economic Development. https://www.commerce.alaska.gov/web/amco/marijuanaregulations/faqsonpubliccommentsregulations/qadraftset2.aspx Accessed 24 Apr. 2018. 

 

Nevada Legislative Counsel Bureau. “AB463.” Nevada Legislature, 2017. https://www.leg.state.nv.us/Session/79th2017/Reports/history.cfm?billname=AB463 Accessed 24 Apr. 2017. 

 

Office of Legislative Legal Services. “Law Summary: Medical Marijuana.” Colorado General Assembly, 8 Aug. 2016. https://leg.colorado.gov/sites/default/files/medical-marijuana.pdf 

 

Office of Legislative Legal Services. “Law Summary: Retail Marijuana.” Colorado General Assembly, 8 Aug. 2016. https://leg.colorado.gov/sites/default/files/retail-marijuana.pdf 

 

Oregon Liquor Control Commission. “OLCC Marijuana Program: Frequently Asked Questions.” State of Oregon. 30 Mar. 2018. PDF. http://www.oregon.gov/olcc/marijuana/Documents/MJ_FAQS.pdf Accessed 24 Apr. 2018. 

“Retail Marijuana Sunset.” Colorado General Assembly, HB16-1261. https://leg.colorado.gov/bills/hb16-1261 Accessed 7 May 2018. 

 

Roberts, Michael. “NORML Working with Cory Gardner’s Office on Hands-Off-Colorado-Pot Bill.” Westword, 3 May 2018. http://www.westword.com/news/norml-working-with-cory-gardner-on-bill-to-protect-marijuana-businesses-10262918 Accessed 7 May 2018. 

 

Sanchez, Ray and Michael Martinez. “Colorado pot law called springboard for other states.” CNN, 6 Jan. 2014. https://www.cnn.com/2014/01/03/us/marijuana-laws-united-states/index.html Accessed 7 May 2018. 

 

“State Marijuana Laws in 2018 Map.” Governing. eRepublic, 2018. http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html Accessed 19 Apr. 2018. 

 

“Task Force Report on the Implementation of Amendment 64.” State of Colorado, 13 Mar. 2013. http://hermes.cde.state.co.us/drupal/islandora/object/co%3A11782/datastream/OBJ/view Accessed 19 Apr. 2018.

 

Wallace, Alicia. “Where is weed legal? A map of U.S. marijuana laws by state.” The Cannabist, Jan. 2018. https://www.thecannabist.co/2016/10/14/legal-marijuana-laws-by-state-map-united-states/62772/ Accessed 24 Apr. 2018.  

 

Washington State Liquor and Cannabis Board. “Medical Endorsement Need to Knows.” State of Washington. PDF. https://lcb.wa.gov/publications/Marijuana/I-502/Medical%20Endorsement%20Need%20t o%20Knows.pdf Accessed 24 Apr. 2018. 

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