S1106 Concerns and Recommendations Elisha Figueroa, Administrator Governor’s Office of Drug Policy S1106 is the most liberal, unrestricted CBD bill in the country. 13 States with CBD Laws Alabama South Carolina Florida Tennessee Iowa Utah Kentucky Wisconsin Mississippi West Virginia Missouri Virginia North Carolina All of these states have included regulations to govern the programs except Kentucky and West Virginia. However, Kentucky has included a safeguard that only allows CBD to be dispensed or administered pursuant to the written order of a physician by a public university with a school of medicine in the state. Regulations/Safeguards Commonly Included in CBD Laws Patient registry/ID card Specifies medical conditions (usually seizure disorders) Physician recommendation Product label or certificate of analysis from an independent testing lab Oversight by a state agency Idaho’s bill includes none of these. The reasons given for not including safeguards was to remove the necessity of expanding state government to oversee such a program and to remove liability from the state should this law produce unintended negative consequences. Negative Consequences Likely to Result upon Passage of this Bill No regulation  S1106 allows any person to sell, possess, and use this substance in any place, at any time, in any amount, and for whatever reason they choose. There are no age restrictions and no requirement of parental consent.  This bill is being sold under the guise of medicine, but it eliminates the need to seek medical advice or obtain a medical recommendation for its use. The bill does not require any medical diagnosis, consultation, or monitoring and there will be no way to determine if the use of CBD oil is being used in a manner that is incompatible with other medical treatment. Even associations and professionals who are interested in studying CBD treatment for epilepsy acknowledge the importance of ensuring it is provided with a physician’s knowledge.  This bill provides no qualifications or standards for manufacturing, testing, labeling, packaging, transporting, advertising, storing or distributing this substance. Unless the oil is tested by an independent lab and labeled precisely, no one will know what the oil contains and whether it is 25% THC or plain cooking oil labeled as CBD.  This bill does not address the source of CBD oil, and provides no penalties for the sale of oil that is contaminated or different than advertised (even fake CBD). Law Enforcement  No police officer will be able to enforce the existing laws relating to marijuana. o Officers will not be able to tell the difference between what is a “legal” marijuana substance versus illegal marijuana by seeing or smelling the product. o There is no presumptive field test to determine the percentage of THC. The NIK tests used by officers in the field only determine if THC is present or not. Therefore, all questionable substances will have to be forwarded to the Idaho State Police Forensics Lab for a determination. These lab tests are approximately $100/test. o This bill has the potential for completely destroying the narcotics dog programs in every city and county in Idaho. K9 drug detection dogs are trained on the scent of the whole marijuana plant. Therefore, it is likely that the dogs will alert to a substance with .3% THC. On 2/25/15, I observed a test of three Boise Police K9’s to determine if they would alert to CBD oil recently confiscated from a Boise smoke shop. Two of the dogs alerted, one did not. This test shows that the reliability of drug dogs will be questionable, as they may alert to this new legal marijuana, thereby rendering the dogs null and void for marijuana enforcement. Every dog in the state will have to be taken out of service as soon as the law goes in to effect. Because K9’s are trained on four scents (marijuana, heroin, meth, and cocaine), and the dogs will now be alerting to a “legal” substance, agencies will be unable to use these dogs, necessitating the purchase of replacement K9’s at approximately $25,000/dog. o o  One of the most important functions of a K9 is to allow officers to conduct a search. The dogs will not be able to do this as there will be a chance they are alerting on a legal substance. If a drug dog alerts to marijuana/CBD, giving an officer the ability to search, and the officer finds meth or another hard drug, the search could be deemed unconstitutional and the entire case thrown out of court if the marijuana returns as .3% THC or less. Soon, persons with illegal drugs will learn to simply carry CBD with them as a “get out of jail free” card. Police will not be able to seize a substance for testing unless they have probable cause to believe that a crime has been committed, which will be impossible to do with an unlabeled and untested oil that can be in any container and in any quantity. o Traffickers of butane hash oil and other high-THC oils will be able to disguise their illegal activity. Without strict labeling requirements and restrictions on who and how a person may obtain it, the CBD market will simply be the perfect disguise for persons involved in the black market sale of hash oil. Consequently, this bill is setting us up for the widespread sale and consumption of high-THC oils, and the proliferation of hash oil extraction labs. o Officers will no longer be able to use the “in plain view” protocol to justify a search because the product in plain view could be legal and they cannot assume it is illegal. o Therefore, the tools police officers currently have to enforce marijuana laws in Idaho, the NIK test, K9’s, and search and seizure laws will all be null and void and useless. This bill will take away law enforcement’s ability to police marijuana crime, thereby essentially legalizing marijuana in Idaho for all intents and purposes. o This bill provides no legal way to get CBD oil into the state. It is a federal felony to transport it across state lines. Idaho State Police Forensics Lab o Currently the lab turnaround time for a lab test is approximately two weeks. Given the likelihood of a substantial increase in substances being sent to the lab for testing, turnaround time will increase significantly. In addition the new analysis is likely to require 50 times the current analysis time due to the additional prep work, instrumental time, data analysis, and more difficult technical review. This could lead to issues ensuring a speedy trial. o Many county labs that currently perform MJ testing with simple methods would have to send these cases to the state lab for quantitative analysis. o Currently does not perform quantitative testing of THC or CBD (or THC versus CBD). This would require an estimated five to six additional FTE’s as well as additional instruments. Quantitative chemistry is much more difficult and time intensive than qualitative work. o Edibles, vaping liquid, injectable, and oils are all extremely difficult samples to work with on the scientific instrumentation and with scientific methods. Increased Fiscal Consequences o According to the Idaho State Police Forensic Services, this bill would require a purchase of at least three new instruments at a potential cost of approximately $1.8 million (plus $30,000 per year in annual maintenance costs). o ISPFS would likely require at least 5-6 more FTE’s at a cost of approximately $80,000/FTE to handle the number of samples they anticipate as a result of this law. The new analysts would also support all the new court challenges with this law. o Therefore, an initial year fiscal impact for the lab of $2.4 million is anticipated, with $500,000 to $1 million in annual ongoing costs thereafter. o It is anticipated it will take the lab 8-12 months to get this new equipment and these new FTE’s up and running. o It is also important to note that “contains no psychoactive substance” is not something the state lab chemists can testify to. They cannot testify to the effects, just what the substance contains. The court will have to bring in a doctor, pharmacologist, or another expert to testify to that. This would be another fiscal impact on the courts. o Replacement drug detection dog costs at approximately $25,000/dog for 150 dogs statewide would equate to $3.75 million for law enforcement agencies. o This is a total fiscal impact of at least $6.15 million for the first year, with ongoing impacts of well over $1 million/year. Proliferation of CBD Businesses o In Idaho, vape shops already advertise CBD oil (both illegally and deceptively by selling fake CBDs). With the passage of this bill, we can expect that every vape shop, gas station, and convenience store will be selling it. Again, there will be no way to know if these products are “legal” or not without sending them to the lab for testing and incurring increased costs. o We will see outrageous marketing of these products and our youth will be inundated with the notion that marijuana is medicine. A Legal, Medically Sound Alternative There is an FDA-approved process for providing CBD oil to epilepsy patients through a clinical study (free of charge). Such a study of GW Pharmaceuticals’ drug Epidiolex is scheduled to begin spring 2015 under the direction of Dr. Robert Wechsler. This would ensure that kids in Idaho are getting pharmaceutical-grade oil that has undergone extensive testing. ODP’s Recommendations Unfortunately, stakeholders from law enforcement, the courts, and prevention were not consulted prior to the writing of this bill and, as has been discussed, there is an extensive list of concerns. However, if the State of Idaho is going to embark on the marijuana legalization endeavor, it is extremely important that Idaho citizens have the protection of a regulatory and medical structure that will avoid some, but not all, of these negative consequences. Option 1 – Try to kill S1106 and promote the FDA trial as an alternative. $0 fiscal impact. Option 2 – Try to kill S1106 and recommend the introduction of legislation mirroring Utah’s CBD law passed in 2014 with modifications to approve only oral suspension or oil forms. $15,000 fiscal impact based on Utah’s estimate of approximately .25 FTE. Option 3 – Recommend modification of S1106 to include the following ($0 fiscal impact): 1) The patient or the patient’s parent/guardian must obtain the CBD extract in a sealed container with a label indicating its place of origin  It must come with a certificate of analysis developed by a testing lab in the state in which the extract originated and this document must be kept with the substance at all times.  Lab may not be affiliated with the producer of the extract  Certificate must have a unique number that corresponds to a number on the sealed container of the extract and must indicate the percentages of THC and CBD 2) The patient or patient’s parent/guardian must be diagnosed with an intractable form of epilepsy and must obtain a written recommendation from a licensed neurologist or epileptologist. This recommendation must be kept with the substance at all times. 3) The CBD excluded from the marijuana definition in Idaho Code should be limited to oral suspension or oil forms. 4) Possession of .3% THC products should be limited to 16 ounces (estimated 3 month supply). Options 1 or 2 are the preferred course of action. Safeguards would be established to ensure this program is clearly allowing access to only patients with intractable seizure disorders (the stated intent of S1106) and puts into place a system to ensure law enforcement can continue forward with their responsibility to enforce drug laws. Option 2 is not the preferred course of action at this time. However, the recommendations: 1) Address the sponsors’ desire to avoid expanding government to provide oversight of a CBD program while implementing some limited safeguards. 2) Better insulate the state from liability by acknowledging that marijuana is considered a drug associated with real and verifiable harms, and puts into place requirements to ensure, to the best of the state’s ability, that citizens are obtaining and using a product that has been analyzed and labeled properly. 3) Provide a method by which law enforcement can better determine if the substance is legal or illegal under state law by inspecting the product label, certificate of analysis and physician recommendation. 4) Will prevent CBD oil from being sold at vape shops, head shops, and convenience stores across the state, which would significantly increase state lab costs, further normalize marijuana use, and further the efforts of pro- Iegalization forces.