At the 2018 SAWCA All-Committee Conference, a session discussed how recreational and medical marijuana is impacting regulators, the medical community, and businesses in Colorado and Maine. The panel was:
- Paul Tauriello – Director, Colorado Division of Workers’ Compensation
- Kristi Kelly – Director, Marajuana Industry Group
- Dominique Mendiola – Colorado Director of Medical Coordination
- Paul Sighinolfi – Executive Director Maine Workers’ Compensation Board
To start, it’s important to understand the background of marijuana regulation in the United States. If you look back in history the reason that marijuana was regulated on the federal level was political in origin, not based on science. It was classified as a Schedule 1 substance in 1970 even though it was acknowledged that marijuana was not the same as other drugs classified as Schedule 1. The thought was that the classification would be short term and Congress would take action to change this, but it never happened.
One of greatest regulatory challenges around legal marijuana has been getting collaboration and stakeholder participation. Stakeholders include public health officials, law enforcement, the Department of Agriculture, the general public, and marijuana growers and distributors. Maine legalized recreational marijuana two years ago but they have not yet implemented it because they are still figuring out how to regulate it. This is a product you can grow at home, so how do you control and tax that?
While marijuana remains illegal on the Federal level, the Department of Justice has not been enforcing this in states with legalized marijuana. The Federal government seems content to let the states regulate this, yet they have not yet reclassified it from Schedule 1. However, the conflict between Federal and state law remains a significant concern because technically DOJ could start enforcing marijuana laws at any time.
Colorado is the only state to have the right to use marijuana as part of their state constitution. Because of this, it is intertwined into their state government as all elected officials and regulators are sworn to uphold the state constitution.
In Colorado they conduct extensive background checks on individuals working in the marijuana industry to ensure they have no criminal record. They won’t even let someone with outstanding child support liens work in the industry. Their goal is to ensure the legal marijuana industry is beyond reproach in terms of the people working in the industry because of concerns that it could be criminalized. Since Colorado has the most mature legal marijuana marketplace in world, regulations from around the nation and the world look to Colorado for guidance.
Colorado’s medical marijuana statute explicitly states that no “carrier” can be compelled to pay for the drug. This includes workers’ compensation carriers. Other states have similar language in their medical marijuana laws. Some carriers have voluntarily paid for it.
Another area of conflict in the statutes is language in Colorado’s workers’ compensation statutes that allow for reduction of benefits if the worker fails a post-injury drug test that includes marijuana. There is talk about needing to update this language in the workers’ compensation statutes to be consistent with their constitutional language around marijuana.
One of the big challenges for the marijuana industry remains the fact that it is very easy for for illegal operators to exist. People can grown marijuana themselves, , and the black market is still out there which bypasses the regulatory environment including the taxation. It is really unknown what percentage of the total marijuana sold in Colorado and other “legal”states is through legal vs black market operators.
Another big challenge has been in regulating the concentration and dosages of THC in legal marijuana, especially things like edibles, and oils.
There are more studies going on right now in terms of the effectiveness of marijuana as a medical treatment. This has not been extensively studied in the past. This is especially true in the treatment of chronic pain.
Among the issues to be addressed in the future are things like allowing home delivery of legal marijuana and public consumption in marijuana “bars”. Another huge issue to be addressed is being able to evaluate “impairment” under marijuana. Employers are very concerned about ensuring a safe workplace and there is currently no testing for marijuana that focuses on impairment vs the mere presence of THC in their system. States need to develop regulations around what level of THC is considered “impairment” and the science of testing for that impairment needs to catch up with the social realities of marijuana.