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Marijuana campaigns disagree over what can be regulated under ballot measure

  • Author: Suzanna Caldwell
  • Updated: September 28, 2016
  • Published October 26, 2014

Opponents of marijuana legalization are concerned if Ballot Measure 2 passes, Alaskans would see an increase in butane hash oil, and with that, an increase in explosions in its production, although proponents argue the dangerous method of extraction could be strictly regulated.

The specific concern about hash oil is reflective of a larger question about the measure -- one on which the campaigns disagree: When it comes to the rule-making process outlined in the initiative, how much room is there for adding limitations?

"Attorneys for the pro-marijuana industry want voters to think that all the problems with Ballot Measure 2 can simply be regulated away, but we believe that the courts would not allow the prohibition of home processing of marijuana products," Big Marijuana. Big Mistake. Vote No on 2 spokeswoman Kristina Woolston wrote in an email.

Opponents argue limiting the home production of butane hash oil, among other issues, is something that would substantially conflict with the wording of the initiative.

"Because it's specifically outlined in personal use processing, it's our understanding you can't alter that or it will be considered a repeal," Woolston said a press conference Tuesday.

But proponents of the measure -- and attorneys unaffiliated with either campaign -- disagree. A rule-making process specifically outlined in the initiative gives the state nine months to set up rules regulating marijuana through a marijuana control board, which could be housed under the Department of Commerce, Community and Economic Development. Beyond that, the Legislature can also make its own amendments to the initiative, a protection guaranteed in the state's constitution as long as the amendments do not constitute a repeal of the initiative.

Limiting the home manufacture of butane hash oil and other public health and safety risks related to marijuana legalization could be reasonably addressed during that process, according to initiative co-sponsor Tim Hinterberger.

"We wanted something sensible," said Hinterberger, who helped draft the initiative with the Campaign to Regulate Marijuana Like Alcohol in Alaska. "Nobody wants people messing with volatile solvents in their kitchen or wherever."

Fires on the rise in Colorado

Butane hash oil -- a highly potent marijuana derivative made using a solvent that strips the cannabis plant of its cannabinoids -- has faced criticism from those opposing marijuana legalization. The oil -- also known as budder, shatter and ear wax, and often consumed using a method called dabbing -- can have concentrated levels of THC, causing an extremely potent high.

However, the methods of extracting it are dangerous. Flammable solvents -- including alcohol and butane fuel -- are often used in its production. When done outside of commercial operations, the process can be dangerous. Numerous YouTube videos detail "hash oil" fails. Communities, including several in Colorado, have noted an uptick in home explosions and injuries since marijuana legalization passed in 2012.

According to the Rocky Mountain High Intensity Drug Trafficking Report, there were 26 explosions in the first six months of this year, up from 12 in 2013 and a total of two in 2009.

In Alaska, it appears there have been no hash oil explosions. Representatives for fire departments in Anchorage, the Matanuska-Susitna Borough and Fairbanks all said they had not responded to -- or heard of -- any fires related to butane hash oil extraction.

The Alaska Department of Public Safety reported two evidence submissions of hash oil to the state crime lab in 2013 and one in 2014. According to a spokesman, the Division of Fire and Life Safety has not investigated any fires attributed to the manufacture of hash oil.

But the drug has gained popularity Outside. As communities in Colorado and Washington deal with the product as a result of marijuana legalization, regulations have been enacted. In Colorado, communities can elect to ban the home manufacture of butane hash oil. In Washington, only commercial operations are allowed to produce it.

Blowing it up

In an Alaska press event paid for by the No campaign Tuesday, Siegfried Klein, a captain with the Aurora Fire Department in Aurora, Colo., demonstrated the dangers of producing butane hash oil in the home. Klein, who has advocated against marijuana in Colorado and other states, took six cans of butane -- roughly the same amount needed for a 32-ounce extraction of butane hash oil -- and opened them in a small 8-foot-by-8-foot shack used by firefighters for training.

Klein filled the room and then ignited it with a small spark -- similar to a static electric shock that could occur during a home cook. The explosion was loud, blowing the top off the small structure, cracking a window and burning the carpets, rugs and plastic tree set up in a corner before nearby firefighters extinguished the flames.

Klein said temperatures related to a butane hash oil explosion can be over 1,000 degrees Fahrenheit. Numerous people have been seriously burned as a result of such fires.

Klein has been advocating for his community in Colorado to ban the home manufacture of the product after dealing with nine butane hash oil explosions so far this year.

He said before the initiative passed, he had no idea what butane hash oil was. But shortly after the initiative passed his department started seeing more explosions.

"When we started learning about (it), we had to go back and look at cases we had and go 'OK, we missed this,'" Klein said.

Colorado has allowed local governments to impose restrictions on the home manufacture of butane hash oil. That change has come as part of the rule-making process, with a handful of communities adopting the ban. Klein said he's helping Aurora get in a ban put into place, as well as helping Denver draft a similar measure.

‘Reasonable regulations for reasonable reasons’

Dean Guaneli, retired chief assistant attorney general in the criminal division for the Alaska Department of Law, says he has serious concerns over the difference between the regulatory rule-making process -- to be conducted by the alcohol control board -- and how the agency could manage those regulations at a criminal level.

Guaneli, who is not directly associated with the No campaign but has advocated on its behalf, said it would be possible for the Legislature to enact laws limiting butane hash oil production. However, he has questions about how effective they would be and how they would be addressed in court.

"Could the Legislature address this? Sure," he said from Juneau on Thursday. "Can I guarantee that any of (the restrictions) will work? Maybe. Will it be challenged (in court)? Yes."

Based on the initiative's language, he said, it's uncertain what the outcome in a court challenge would be.

Hinterberger said there's "no legal basis" for the No campaign to argue that drafting restrictions to hash oil production would invalidate the initiative.

Attorneys who specialize in initiative law agree.

"If the general thrust (of the initiative) is to legalize and regulate it, then at the margins you can regulate dangerous or marginal activity," said Scott Kendall, an Anchorage attorney specializing in campaign and election law.

"They can tinker with it ... but not change it in a way that undermines the entire purpose," said Kendall, an undecided voter who is not affiliated with either campaign.

Anchorage attorney Tom Amodio said it seems logical based on the language of the initiative that things like quantity of marijuana and production could be limited.

"When you look at it from a legal standpoint, the government does have (the) right to impose reasonable regulations for reasonable reasons," said Amodio, who specializes in initiative law.

As an example, Amodio noted alcohol is legal to consume, but it's illegal to drive while under the influence. If a law like that passes muster, there's no reason to expect restrictions on butane hash oil would be any different. Amodio is unaffiliated with either marijuana campaign and said he too is undecided as to how he'll vote on the measure.

Amodio said there are "no hard and fast" rules when it comes to imposing these sorts of regulations, but in ballot initiative debates, both sides will go to extremes in the language of the law.

"It's not uncommon that people one side of the law will say X, and there's no way to prevent it," Amodio said.

Kendall agreed.

"This is the game," Kendall said. "They'll interpret the initiative the most extreme way they can, because that's how you win an election. Then day one after the election you interpret in a whole different way because you don't want it interpreted in that extreme way."

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