Vermont State Police 'lacks the technical capability' to measure legal pot limits in edibles

Jess Aloe | Burlington Free Press

Show Caption Hide Caption Making marijuana treats Hadley Malcolm speaks with USA TODAY's Trevor Hughes regarding marijuana snacks.

The Vermont State Police lack the technical ability to enforce the 1-ounce possession limit for marijuana-infused products, like oils and edibles—even though lawmakers instructed the state's Department of Public Safety to figure out a method five years ago.

Since 2013, 1-ounce limit has served as a crucial dividing line between civil and criminal penalties. The state's new July 1 law removes all penalties for less than an ounce and allows adults to possess two mature and four immature marijuana plants.The decriminalization Gov. Peter Shumlin signed in 2013 charged the state's Department of Public Safety, which oversees the Vermont State Police, with creating a formula to accurately measure marijuana content in pot-infused products.

"The Vermont Forensic Laboratory lacks the technical capability to determine the actual weight of marijuana in any edible," Capt. James Whitcomb said in an email Thursday afternoon. The Burlington Free Press first asked about the law on Tuesday, after a round-table discussion about marijuana enforcement. State officials had no immediate knowledge of whether testing guidelines had been developed and had to review what the law stated about their responsibility to develop testing procedures before responding on Thursday afternoon.

Whitcomb pointed out that marijuana is different from other controlled substances, where the total weight of any compound or mixture is counted.

"We are unable to create a rule when we lack the laboratory capability to determine the weight of marijuana in an edible," Whitcomb said. "The law requires us to do something we are unable to do in Vermont, and therefore we are in a Catch-22."

State police may consider sending items to out-of-state labs for analysis on a case by case basis, but don't do it as a rule because of the time and cost constraints.

Vermont's current law states that "only the portion of a marijuana-infused product that is attributable to marijuana shall count toward the possession limits of this section."

"We were trying to make it measure reality," said Sen. Chris Pearson, P-Chittenden County, one of the sponsors of the 2013 change. "The actual marijuana content is what is measured.

"If a person put a quarter ounce of marijuana into a batch of brownies and the brownies weigh 2 pounds, police shouldn't count that as 2 pounds of marijuana, said Pearson.

Sen. Pearson said that the language directing the department to develop methods would still be law after this month.

He has never seen Verrmont's State Police's rule on measuring edibles, he said, but said he assumed one had been created.

A training bulletin distributed to troopers about enforcing marijuana laws after July 1 fails to address marijuana-infused products.

"The bulletin, like the law, doesn't address all potential incidents, including edibles," said Whitcomb said Tuesday at a round-table discussion about marijuana enforcement. "These are incidents that troopers are going to encounter, and we realize that."

Whitcomb said that troopers have been directed to collaborate with prosecutors on enforcing the ounce-limit for edibles.

More marijuana coverage:

Here's a look at what some other guidance lawmakers and law enforcement have given on edibles.

Can you make your own edible marijuana products?

There is nothing in the new law prohibiting Vermonters from making products from marijuana they legally possess, said Laura Subin, director of the Vermont Coalition to Regulate Marijuana. She has been advocating for legalizing marijuana under a taxed and regulated system for years.

The law kicking in on July 1 removes all state penalties for small amounts of marijuana.

Adults over 21 will be allowed to have up to 1 ounce of marijuana starting next month. If people choose to grow their own, they will be allowed two mature plants and four immature plants per home.

Vermonters with a medical marijuana card will still be able to buy edibles from the state's dispensary.

Can you gift marijuana-infused baked goods?

Subin said she believes that lawmakers will be looking at gift-giving as they continue to examine legalization.

"Gifting is a gray area," said Subin.

Legislators, she said, have heard a lot of testimony about legalization in Washington D.C. In 2014, the district removed penalties for possessing small amounts of marijuana. Sales have remained stymied, leading to the rise of delivery services that offer marijuana as a "free gift" with the purchase of a variety of objects, like juices, cookies or t-shirts.

Lawmakers do not want to see a similar gray market take hold in Vermont, Subin said.

Are edibles dangerous?

A cautionary tale: two Shelburne Farms employees partook in a box of abandoned chocolates.

But the chocolates left them with more than a sugar high. The two employees had to be hospitalized, and police said guests had left behind the cannabis-laced candies.

Police took the opportunity to warn Vermonters to be cautious as legalization of marijuana looms, but declined to press charges against the guests.

In 2016, when the Vermont Senate passed a bill that would have set up a taxed, regulated market for marijuana, they explicitly said no to edibles.

Lawmakers were concerned about the safety of edible marijuana. States like Colorado struggled with portion sizes and consistency of dosing. Some lawmakers also said they were worried that children would get their hands on marijuana-infused sweets.

Prevention Works VT, a coalition of community groups working to lower rates of drinking, drug use and smoking, issued a fact sheet about edible marijuana warning that edibles could be made with hash oil and be indistinguishable from regular food.

The coalition also pointed to a spike in emergency room visits in Colorado by adults and children who had consumed edibles.

But, Subin said, a lot of those issues have been addressed by states like Colorado that allow for marijuana sales. Packages are now labeled for potency, and there's limits on how potent an edible product can be, she said.

"A lot of the concerns about edibles are a little reactionary," she said. She added that selling edibles in a regulated system is a net positive for public health: it's hard to be precise with potency when making homemade marijuana goods.

Contributing: Elizabeth Murray. Contact Jess Aloe at 802-660-1874 or jaloe@freepressmedia.com. Follow her on Twitter @jess_aloe