Overview

Currently (as of March 2020), Colorado authorizes marijuana use for both medical and recreational purposes.

Colorado offers medical marijuana registration identification cards for patients with legitimate debilitating or disabling medical conditions; however, employers are not required to accommodate medical marijuana use in any place of employment.

Colorado has also authorized recreational marijuana use under a system that regulates marijuana according to a scheme similar to alcohol regulations. In 2018, the then attorney general rescinded the DOJ’s 2013 memorandum announcing that it would not challenge state ballot initiatives in Colorado legalizing possession and use of marijuana under state law. While the DOJ is not currently under any orders to take specific action relating to prosecuting marijuana possession or use, federal prosecutors are under instructions to “weigh all relevant considerations” in deciding which cases to prosecute. In 2019, Colorado Governor Jared Polis signed off on legislation that would allow businesses in the state to apply for licenses that would create social marijuana use areas. The law is scheduled to take effect in 2020, pending approval from voters.

Colorado has operated an Industrial Hemp Program since 2015, under the 2014 Farm Bill. It will remain in place until the USDA-approved state plan under the 2018 Farm Bill is adopted November 1, 2020.

Marijuana

As amended January 1, 2020, the Colorado Marijuana Code now includes the provisions for both medical and retail marijuana use (C.R.S. §§ 44-10-101). Colorado allows for the cultivation, manufacture, distribution, sale, and testing of medical marijuana and retail marijuana, pursuant to the terms, conditions, limitations, and restrictions contained in Article 18, Section 14 and Article 18, Section 16 of the Colorado Constitution, respectively.  

Medical Marijuana

Colorado allows patients suffering from legitimate debilitating medical conditions to obtain a license to use medical marijuana. The law protects the licensed patients and their caregivers (including primary, advising, transporting, or cultivating caregivers) from prosecution for use and provides an avenue for establishing an affirmative defense to their use of medical marijuana.

Colorado also administers a medical marijuana health research grant program under the direction of the Department of Public Health and Environment. The grant program exists to address the need for objective scientific research regarding the efficacy of marijuana as part of a medical treatment.

Colorado law does not currently offer protections to employees regarding medical marijuana use, and employers are under no obligations to accommodate medical marijuana use in any place of employment (Colo. Const. art. XVIII, § 14(10)(b)). As affirmed by the Colorado Supreme Court in People v. Crouse, employees that test positive for marijuana despite having used the drug off-duty to treat a legitimate debilitating medical condition are not protected under the state’s “lawful activities” statute (§ 24-34-402.5). 388 P.3d 39 (Colo. 2017).

Recreational Marijuana

Recreational marijuana use is regulated in a scheme largely similar to the regulation of alcohol (Colo. Const. art. XVIII, § 16). As such, individuals must be twenty-one years of age or older and show proof of age prior to the purchase of marijuana. Under Colorado law, none of the below shall be considered unlawful or constitute an offense:

• The possession, use, display, purchase, or transport of marijuana accessories of one ounce or less of marijuana;

• The transfer of one ounce or less of marijuana without payment to a person twenty-one years of age or older;

• The consumption of marijuana (provided it is not conducted openly or in a manner that endangers others); and

• The possession, growth, processing, or transport of a maximum of six marijuana plants, three or fewer of which are mature, flowering plants. 

Marijuana establishments are required to obtain licenses to operate and adhere to strict security, labeling, health and safety, and advertising requirements. The valid operation of marijuana-related facilities and ancillary activities such as the possession, display, transport, cultivation, harvest, or processing of marijuana and marijuana products are not unlawful under Colorado law nor do they constitute a basis for seizure or forfeiture of assets.

In 2019, Colorado passed HB19-1090, which repealed prior provisions prohibiting publicly traded corporations from holding a marijuana license. The bill will allow for greater investment flexibility in marijuana businesses, subject to state licensing requirements. Additionally, the passage of HB19- 1230 in 2019 will also now allow for regulated social pot consumption, legalizing establishments such as marijuana cafes, and dispensary testing rooms. Dispensaries will be able to apply for tasting-room licenses similar to those used for breweries or restaurants.

Hemp

The only lawful pathway to grow industrial hemp in Colorado is through participation in the Colorado Department of Agriculture’s Industrial Hemp Program, which was authorized under the 2014 Farm Bill. The Department also administers a certified seed program. The Industrial Hemp Program does not have jurisdiction over the processing, sale, or distribution of industrial hemp. The current Industrial Hemp Program will remain in place until the USDA-approved state plan under the 2018 Farm Bill is adopted November 1, 2020.

The Industrial Hemp Regulatory Program Act requires individuals wishing to grow or cultivate hemp for commercial purposes to register with the state (C.R.S. §§ 35-61-101 et seq.). Individuals are also required to adhere to strict reporting and testing requirements to ensure that the plants do not contain a THC concentration of more than 0.3% on a dry weight basis (8 C.C.R. 1203-23).

In 2019, Colorado passed SB19-240, which outlines new regulations concerning commercial products containing industrial hemp, and mandates a registration fee for any wholesale food manufacturer that produces an industrial hemp product.

Upcoming Legislative Agenda

Governor Polis has recently unveiled a new plan that would expand the number of banks and credit unions that work with the marijuana industry. Titled The Roadmap to Cannabis Banking & Financial Services, the legislation would shield banks from being penalized for accepting state-legal cannabis business accounts. Currently, federal prohibitions on cannabis prevent marijuana businesses from accessing conventional financial products and services that both limit opportunity and create risk. Cannabis companies still largely operate on a cash-only basis, making them targets for crime. The bill would rely on  egal guidance from the Attorney General regarding the provision of services under the Money Transmission Action and the Trust Companies Act.

Under the recently launched Carbon Dioxide Reuse Pilot Project, the Colorado Department of Public Health and Environment (CDPHE) will partner with the Colorado Energy Office to work to capture and store carbon dioxide emitted during the beer-brewing process for use by cannabis growers. Carbon dioxide is a key component in the plant growth process, and the project will allow both breweries and marijuana businesses to slash carbon dioxide emissions. The National Governors Association announced in late 2019 that it would be working with Colorado to establish best practices in energy efficiency in the marijuana market.

In January 2020, a bill was introduced to create protections for employees that use marijuana by preventing businesses from firing employees for partaking in legal activities that are only legal under state and not federal law. The bill would invalidate the Supreme Court’s holding in People v. Crouse