Alaska employers should brace for problems if a ballot proposition legalizing marijuana sales and use is approved in the November state general election, critics of the measure say.
Ballot Measure 2, legalizing marijuana, is virtual similar to a Colorado measure passed in 2012 that is now causing big problems in the state.
Like several states, Alaska already has a law allowing medical use of marijuana and personal use and cultivation has been legal since a 1975 state Supreme Court ruling that household possession was protected by a constitutional right to privacy, but a Colorado-type law would sharply increase access to the drug.
Alaskans have twice voted against legalization, first in 1990 and again in 2004, both times with 55 percent opposed.
In addition to business organizations that have come out against Ballot Measure 2, it is being opposed by Alaska Native regional and village corporations, various law enforcement and medical organizations and the Alaska Conference of Mayors.
Employers worry this will exacerbate drug-screening problems affecting their ability to hire and expose them to litigation that could undermine company drug-prohibition policies.
Supporters of the ballot proposition who point to backing from some individual groups of parents, members of both political parties and former law enforcement officers, say concerns on this and other issues are overblown.
“Marijuana is already here. Approximately 15 to 18 percent of Alaskans now smoke marijuana in the privacy of their homes and away from children. The typical user is not an 18-year-old stoner,” said Bruce Schulte, an Anchorage architect who spoke for the proposition at an Anchorage Chamber of Commerce debate Oct. 13.
Many have doubts about this, however, from the experience of Colorado and Washington state, two states that legalized recreational marijuana sales and use in 2012.
That includes Colorado people who voted for the proposal.
“People are now having ‘buyers’ remorse’ in Colorado. Things are turning out a lot differently than we were told they would,” said Jo McGuire, a former member of a Colorado state task force formed to regulate marijuana.
McGuire was in Alaska in early October talking about her experience with the implementation of the Colorado initiative, hosted by three Alaska business groups: the Alaska Chamber, the Alaska Support Industry Alliance and the Mat-Su Business Council.
Rachel Petro, president of the Alaska Chamber, said a key concern for her is how loose the Alaska proposition is. Washington has taken a more measured approach, she said. Its law, adopted also in 2012, is 60 pages and provides for detailed regulatory controls. The Colorado law, in contrast, is only six pages, similar to the eight pages proposed for Alaska, she said.
Revenue hasn’t materialized
On tax revenues, a key argument for legalizing marijuana, McGuire said the Colorado measure has been a huge disappointment. Not only are tax collections woefully short — $130 million a year in revenue was predicted by promoters but collections so far this year are $20 million — and because Colorado’s law promises the first $40 million in collections to schools it appears revenues will not hit that mark and will also not cover costs of regulation, which will instead be borne by Colorado taxpayers.
Tax collections are short because of apparent mass tax evasion by retail dispensers, she said.
Estimated revenues in Alaska are $10 million to $15 million and costs are estimated at $7 million, but if Colorado’s experience is any guide these figures may be an illusion, said Petro.
McGuire said here has also been a sharp rise in marijuana-related auto accidents and increased use by children.
In an August 2014 report, the Office of National Drug Control Policy, an agency in the White House, said that Colorado traffic fatalities involving drivers testing positive for marijuana had increased from 7 percent of traffic fatalities to 16.5 percent.
The data covers years in which marijuana was legal in Colorado for medical purposes. The 2012 legalization was not fully in effect.
The was a similar trend, a 26 percent increase, in youth use of marijuana between 2009 and 2012, the three years following legalization of marijuana for medical uses.
McGuire said post-2012 trends are more alarming: “Forty percent of 7th graders in Denver County schools say they have tried marijuana, and this is on a self-reporting survey, so the actual number is a lot higher.”
Expanded use by young people is a concern because it is now established by research that regular marijuana use can lower childrens’ IQ by 8 percent to 9 percent, she said.
The explosion of the marijuana retail industry has also shocked local communities who find themselves largely unable to impose controls despite parts of the law that was to give them powers to prohibit sales, McGuire said.
Colorado Springs, for example, has banned marijuana sales three times but pot retailers evade this through various loopholes. A “smoking lounge” in Colorado Springs charges a cover fee, for example, and gives away marijuana, which allows the operator to skirt restrictions that apply only to outlets directly selling the product.
Denver has been largely unable to impose restrictions.
“There are now more pot shops in Denver than there are Starbucks or McDonalds combined,” she said.
Provisions in the Alaska ballot proposition, if it passes, will put small rural communities at a disadvantage in controlling marijuana, according to Dean Guaneli, a retired state prosecutor.
“Ballot Measure 2 is publically touted as intended to regulate marijuana like alcohol. However, its provisions for ‘local control’ are far more limited than those that exist for control of alcohol,” Guaneli wrote in an analysis of the proposition.
Alaska law allows unincorporated communities like small rural villages to limit alcohol being served, imported or possessed, but this will not apply to marijuana under the language of the ballot proposition, he wrote. The term “local government” includes only incorporated municipalities.
“There is no provision in the ballot measure allowing unincorporated villages to adopt any kind of local control,” Guaneli wrote in his paper.
At the Anchorage Chamber debate, Schulte said the Alaska proposition provides for the Legislature to establish rules marijuana sales and use, and state lawmakers can also repeal it after two years.
Colorado has disadvantages because its legalization is a constitutional amendment, which means any substantial change must be approved by voters.
In an interview with the Journal, McGuire said the most infuriating experience for her as a member of Colorado’s marijuana regulation task force was trying to get controls in place to discourage retail sales to children.
She was shocked to see a strong pushback from the new marijuana industry over proposals for special packaging rules.
“They fought everything we proposed, claiming it would bankrupt them,” she said.
State officials finally had to settle for a simple label warning that marijuana was not to be sold to children, and for the marijuana products like cookies to be contained in plastic zip-lock type bags, which can be transparent.
Schulte, in his talk at the Anchorage Chamber, admitted that the retailing of marijuana-packed gummy bears and popsicles in Colorado was a mistake for the industry, and that retailers were harshly criticized by peers.
Marijuana marketing will be a business, he said, and targeting young people who are legally not able to buy the drug doesn’t make sense. Schulte said he doesn’t think it will happen.
Kristina Woolston, who argued against the proposal at the Anchorage Chamber, says the sheer availability of pot in greater quantities will lead to increased youth consumption.
Woolston, spokeswoman for the campaign opposing the ballot proposition, said she also opposes the proposal because it was written by out-of-state marijuana business groups who are also financing the campaign.
“Follow the money. Ninety-eight percent of the funds supporting this are from out-of-state. Funds opposing it are 100 percent from Alaskans,” she said.
“This is part of a national state-by-state strategic plan by the marijuana industry. So much effort is being put into Alaska because the proponents can’t afford to lose a state election, and break the momentum, after the wins in Colorado and Washington.”
Alaska employers, meanwhile, are getting worried about whether their rules to prohibit marijuana in the workplace will stand up if they are legally attacked, said Renee Schofield, CEO of TSS-Safety, a Ketchikan-based company that does drug testing for employers. Schofield is also the chair of the Alaska Chamber.
The ballot proposal says employers will be able to “restrict” marijuana use in the workplace but this wording is not strong enough, Schofield said. Lawsuits may be coming that will argue the law is not explicit in “prohibiting” marijuana, she said.
McGuire said attorneys for the Marijuana Project in Colorado have already said they interpret “restricting” as not “prohibiting,” although there is no court test yet.
Industries that work under federal safety laws, such as trucking, pipelines and airline pilots, operate under strict federal rules that are not affected by state legalizations, but any business not under federal Department of Transportation safety laws will have only its own company policies to fall back on, Schofield said.
“You need to have a strong workplace drug policy in place and being enforced uniformly, with no exceptions,” so there is no opening for a lawsuit, she said. “You don’t want to become a test case. You need to communicate with your employees regularly about this. This sounds small now and many employers enforce their plans in a hit-or-miss fashion, but this is critical.”
If Colorado’s experience is any guide, Alaska will see a spike in the number of job-applicant employees flunking drug tests, trying to evade testing procedures and refusing tests, she said.
This will complicate employers’ attempts to hire qualified workers.
McGuire said the number of people testing positive for marijuana in Colorado job drug tests increased six-fold after legalization went into effect.
Petro, the Alaska Chamber president, said Alaska’s ballot measure is looser than Colorado’s in many respects. For example, the Alaska proposition includes specific reference to legalization of processed and potent marijuana products under the definition of marijuana. Colorado’s law does not go that far, she said.
There are enough concerns because of more potent strains of marijuana now on the market, but the Alaska ballot proposition would also legalize more concentrated marijuana products and processing procedures, such as the making of “Hash-oil” a concentrate of THC that is ingested.
McGuire said many in the public view marijuana as benign based on the less concentrated varieties available years ago, but there are powerful strains available today.
“In the 1960s and 1970s we usually saw marijuana with a THC content of 2 percent to 3 percent. Now we routinely see 12 percent to 15 percent, but our (Colorado) law enforcement people telling us that they are see marijuana with 20 percent to 27 percent THC content,” McGuire said.
Hash oil processing can bump this up to products with 50 percent THC, even as high as 80 percent, she said.
Police and drug-testing firms also face challenges in even the detection of marijuana content in the body as well as measures of impairment, which are less well established for marijuana.
With alcohol, experience shows breathalyzer tests give results that are parallel alcohol content in the bloodstream, but there is no simple, easy-to-administer marijuana test available now that police can use at the roadside.
Blood testing for marijuana is more complicated and takes time. It is required only in the case of Colorado fatalities, McGuire said. Schofield said there are easy-to-administer procedures for marijuana tests involving oral fluids that are promising but these are still in the experimental stage and are not ready for wide use.
Scofield said one of the most chilling aspects of an expanded smoking of marijuana is the issue of second-hand smoke exposure, particularly for children exposed to parents smoking at home.
“We know that marijuana has 2.5 times the carcinogen content of ordinary tobacco,” she said.
It also puts marijuana into the bodies of even very young children, however.
“It’s not uncommon in our drug-testing business to see very young children testing positive for marijuana based on exposure to their parents’ smoke,” she said.
This will only increase if there is widespread availability of the drug, based on hospital data from other states.
The federal report cited data on spikes in emergency room visits for children accidentally ingesting marijuana after Colorado’s legalization in 2012, and a similar trend is seen in parents’ calls to poison centers for children needing intervention between 2005 and 2011 in states where marijuana was becoming legal for medical use.
Calls were up by 30 percent in states with legalized marijuana compared with states that did not legalize medical use of the drug, according to the report.