WY: Legislators Again Consider Edible Marijuana Bills, But Experts Say There Are Still Issues

Photo Credit: Brennan Linsley

Wyoming legislators are set to once again consider rewriting laws dealing with marijuana extracts, concentrates and edibles, but experts — from law enforcement to advocates — say the bills still need work.

This year’s legislation aims to once again close a loophole in marijuana laws that has on at least two occasions induced judges to throw out drug cases involving the non-plant forms of the drug. Because Wyoming statute defines marijuana as a plant, other forms are not directly addressed by state law.

The Joint Judiciary Committee has sponsored two bills that aim to close that loophole. If either of the two bills receives an introductory vote of two-thirds in its respective chamber, the Legislature will consider the issue for the fourth straight year.

Neither bill is perfect, however, according to experts in the field.

At the heart of the issue is an inability to test for the concentration of THC — the active ingredient in marijuana — in edibles, making legislators, prosecutors and lab technicians unsure of exactly how potent a given THC-laced gummy bear is.

As a result, legislators are left trying to approximate at what quantity non-plant THC products become equivalent to three ounces of marijuana in the plant form. At that point, possession would become a felony and allow for prison time.

Natrona County District Attorney Michael Blonigen said the bills were crafted with equivalency between THC amounts in mind. That becomes difficult, however, without an effective way to test for the concentration of THC, he said. Due to legalization in neighboring states, new THC-based products are introduced frequently, complicating any attempt to regulate their possession.

“The most important thing is that we have some sort of fact-based or evidence-based equivalency,” Blonigen said.

The Senate bill demonstrates the difficulty: possessing marijuana-derived products “commercially packaged as a drinkable liquid in a jurisdiction where such commerce is legal,” would be a felony offense for any amount greater than 36 ounces. Meanwhile, possessing other liquid forms of marijuana would become a felony once a threshold of 3/10 of a gram was breached.

Three grams of marijuana-derived resin would be the breaking point between misdemeanor and felony possession, while three ounces of plant and other forms would be the felony cutoff.

The 36-ounce figure was chosen when legislators decided they had to choose a hard-and-fast number, Rep. Dan Kirkbride, chairman of the House Judiciary Committee said. Although 36 ounces of liquid marijuana could contain more than 100 personal doses, he said legislators erred on the side of caution because they didn’t want to create overly harsh prison sentences.

The House bill takes a different tack: “a preparation, compound, mixture or substance not in plant form which contains marihuana or (THC) intended for consumption, other than by smoking, including baked goods, candies, edibles, ointments, potable liquids, tinctures or any other similar form containing marijuana or (THC)” would be weighed in total, including the weight of brownie mix or whatever other carrier the THC appears in. At three ounces, those possession of those products would become a felony.

Although the House bill would close a loophole, it wouldn’t as closely address the varying concentrations of THC in marijuana products.

“There are problems with both bills,” Byron Oedekoven, executive director of the Wyoming Association of Sheriffs and Chiefs of Police, said. He wants to see legislators rewrite drug laws to define marijuana products as those including THC, regardless of form. He said the Legislature also needs to look at laws governing other drugs. Most of the state drug statutes were written in the 1970s and don’t directly address many forms of drugs that have become popular since, he said.

Legislators are focused on the wrong issue entirely, said Sabrina King, the Wyoming ACLU’s policy director. Instead of asking, “How do we criminalize edibles?”, legislators should look to decriminalize the drug and focus on enforcing trafficking laws more closely, she said.

King said decriminalization would be supported by Wyomingites and help ease pressures on an overburdened prison system.

A 2016 phone survey of 722 Wyoming residents found that 81 percent supported medical marijuana though only 41 percent supported “personal use” of the drug.

As for how the two 2018 bills would fare, Kirkbride said he’s unsure if either bill will earn passage, but cited strong support among members of the Joint Judiciary Committee and last year’s close defeat.

If neither bill passes this year, his committee won’t walk away from the issue, Kirkbride said. It’ll be back next year.