Beyond Cheetos And Goldfish, Hickenlooper’s Marijuana Legacy Is His Cautious Approach

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Photo: Hick Marijuana Legacy 2 | Mason Tvert - HVD
Mason Tvert is a partner at VS Strategies, the consulting affiliate of marijuana business law firm Vicente Sederberg.

As Gov. John Hickenlooper mulls a presidential run on his way out of office, his most memorable entry into the history books may not be the one he had in mind. Voters wrote that one for him when they legalized regulated recreational marijuana in 2012.

An outspoken opponent of early efforts to legalize, Hickenlooper was suddenly called on by the voters to make it happen with Amendment 64. It wasn’t a role he relished once sales got under way.

Later, he seemed to offer a tacit approval of the state’s approach when he said “it’s beginning to look like it might work.”

Hickenlooper has managed to keep people guessing over the years about how he really feels about legal marijuana. He seems to see himself as a kind of pendulum, drawn to the most compelling side of the debate.

“One of the things we’re proud of is that we didn’t push the data one way or the other,” Hickenlooper said. “We tried to be the one central point where people would know that they weren’t going to get a spin.”

That’s the thing about pendulums, sometimes they land squarely in the middle, much to many people’s chagrin. It’s something the outgoing Democratic governor acknowledges himself: “you’re always going to make somebody unhappy.”

“It’s funny, some of my older more conservative friends are still a little bitter, I mean they felt that we should’ve put more spin on it, and been more against [legalization],” he said. “I think they said that we made more of the moderates — the people that hadn’t taken a position one way or the other — we made them more comfortable with the legalization of marijuana because we didn’t spin it, and the data came out not as bad as what everyone thought.”

It’s a familiar criticism from people on all sides of the marijuana issue. It seemed the governor was never really in anyone’s corner. Mason Tvert, a partner with the consulting affiliate of marijuana business law firm Vicente Sederberg, thought Hickenlooper missed the opportunity “be a national leader on an issue that is incredibly popular” and clearly gaining momentum. Back in 2012, Tvert was one of the original authors of Amendment 64, which left him at odds with Hickenlooper. On election night that year, Tvert said Hickenlooper set the tone for his administration’s approach to marijuana.

“When Colorado voters approved the first ever law in the country to make marijuana legal for adults, his reaction that night when asked by media was ‘don’t break out the Cheetos and Goldfish yet.’ And in addition to being a cheesy comment, I think it left a salty taste in the mouth of a lot of people,” Tvert said now with a laugh.

For his part, Hickenlooper said it was “an effort to be humorous in the face of something that was catching the nation’s attention.” He added that his point was to “make sure we have a set of rules and regulations in place so that we know what we’re getting into.”

Cheetos and Goldfish became an enduring inside joke of the Hickenlooper administration’s early days building the cannabis regulatory system. Hickenlooper’s first marijuana regulatory chief, Andrew Freedman, said his stakeholder approach was unique. The governor sought to get everyone on board, from concerned mothers to the industry itself.

Photo: Hick Marijuana Legacy 4 | Rachel O'Bryan - AAwad
Rachel O'Bryan, co-founder of Smart Colorado.

Freedman, who is now a marijuana regulation consultant, said Hickenlooper didn’t want simple comment cards, he wanted “structured dialogue about what the rules and regulations should look like for this.”

Smart Colorado has been one of those voices from day one. The group tends to advocate for more stringent regulations in the interest of protecting children.

“Hickenlooper said ‘I want people at the table and that includes parents,’” said Smart Colorado founder Rachel O’Bryan. “So, Smart Colorado got a seat at the table very early on and he firmly believed that everyone should be involved in how we regulate this, not just the industry, and that’s pretty important because industries aren’t very good at self-regulation.”

While O’Bryan has other kind words for Hickenlooper, she doesn’t think “he’s been careful enough on the position of potency.”

Tetrahydrocannabinol, known as THC, is the compound in marijuana that gets you high. Marijuana flower makes up a shrinking share of purchases in Colorado year after year. Flower tends to contain 30 percent THC at most. Meanwhile, wax, shatter and other variations of concentrated THC have become more popular. These products can approach 90 percent THC.

O’Bryan also pointed out that little has been done to regulate new, more discreet methods of consumption like THC inhalers, to keep them from children. Freedman acknowledged the problem isn’t unique to Colorado.

“People who look at the system in Colorado and say there’s so many things that could be changed should take a tour of other states and understand how vastly far ahead Colorado is as a regulatory structure than other states,” he said. “But the extent to which there are ongoing issues, those are national ongoing issues.”

As the first out of the gate, Freedman said the state has hit a sort of regulatory ceiling. In early the days, while regulators busied themselves putting out fires — New York Times columnist Maureen Dowd brought national attention to unregulated edibles early on — the industry scaled fast.

There are now more than 500 recreational marijuana dispensaries in the state of Colorado, even though more than half of the state’s jurisdictions bar sales. Nearly 700 operations are licensed to grow medical marijuana, while more than 700 are licensed to supply recreational cannabis. The count doesn’t include transport businesses, testing facilities, private security firms, manufacturing facilities and the rest of the economy that’s sprung up around marijuana.

Marijuana businesses rang up $1.5 billion in 2017. Early 2018 numbers are on track to beat that. In all, nearly $6 billion of marijuana has been sold in state since recreational sales began on Jan. 1, 2014.

The recreational system is really Hickenlooper’s baby, yet the same can’t be said for the medical marijuana system. The high burden of proof to add a qualifying medical condition to the program is a common critique. The board of health hasn’t done that in the 18 years since medical marijuana became law.

Freedman doesn’t see this as something that should be laid at Hickenlooper’s feet. Medicine isn’t a state concern, instead, “the federal government needs to get the FDA on this, the federal government needs to start bringing research on, there obviously needs to be a right to try things while the federal government catches up with where the medical community is right now.”

Freedman noted that many medical marijuana users rely on anecdotal evidence, which is a tough spot for a governor, “because the anecdote might say that it was helpful, and the data might prove out later on that it was actually harmful to a population.”

“There’s no other space where governors have had to make that call before, that’s just not the way that medicine exists in the United States,” he said.

Michelle Walker, mother of an autistic child and one of the advocates behind a bill that would’ve added autism spectrum disorder to Colorado’s list of qualifying conditions, sees things differently. Hickenlooper vetoed the bill at the very end of the 2018 legislative session, his last as governor.

Walker’s reproach is that Hickenlooper “sacrificed the lives of autistic individuals in Colorado for his run in 2020.”

“This was all politics and posturing and I’m just, I’m still appalled, you can tell I’m getting a little animated about it because this is everything that’s wrong about politics,” Walker said.

In 2017, Hickenlooper signed a bill that added post-traumatic stress disorder to the medical marijuana program. The legislative victory followed repeated appeals to the board of health and a lawsuit brought by advocates against the board and the governor. The rejections from the board of health were always for the same reason: not enough research. The legislation circumvented the whole petition process, so why couldn’t it work for autistic people like Walker’s son?

“How are we supposed to say, ‘well, we can’t add it because there’s not enough evidence or there’s not enough research.’ We can’t have research because we don’t have any evidence,” Walker said. “It’s just this round and round circle, and for me it comes down to which side of history are you going to be on?”

Walker puts Hickenlooper on the wrong side of history in this case. For the governor, it’s a classic example of when his incremental approach to marijuana collides head-on with public pressure for urgency. Hickenlooper’s defense is that the push for PTSD mainly came from adult patients, but in the autism cases “a significant number of them were teenagers and kids,” he said. “We don’t have any data.”

Hickenlooper said early research on marijuana for PTSD was promising. And hypothetically, if he were to run for president, he’d want to take that loyalty to data with him into the White House. Particularly if the time came for him to answer one specific question: would a President Hickenlooper support national legalization in any form?

Hickenlooper mused that, if he were to run, there might be enough data by then to support a stronger position. A slower approach than what marijuana entrepreneurs call for wouldn’t be the end of the world. “But if we go hell-bent for leather,” and it comes out later that some people’s fears were justified then “we’d feel pretty foolish,” he said.

In the end, a hypothetical President Hickenlooper’s position on marijuana wouldn’t be all that different from Gov. Hickenlooper’s actual position on marijuana: Wait and see.

Editor's note: An earlier version of this story incorrectly identified Mason Tvert's business title. The story has been updated with the correct information.