(1) Permissive rule-making. Rules promulgated pursuant to section 44-10-202 (1)(c) may include but need not be limited to the following subjects:
Labeling guidelines concerning the total content of THC per unit of weight;
Control of informational and product displays on licensed premises;
Records to be kept by licensees and the required availability of the records;
Permitted economic interests issued prior to January 1, 2020, including a process fora criminal history record check, a requirement that a permitted economic interest applicant submit to and pass a criminal history record check, a divestiture, and other agreements that would qualify as permitted economic interests;
Specifications of duties of officers and employees of the state licensing authority;
Instructions for local licensing authorities and law enforcement officers;
Requirements for inspections, investigations, searches, seizures, forfeitures, and suchadditional activities as may become necessary from time to time;
Prohibition of misrepresentation and unfair practices;
Marijuana research and development licenses, including application requirements; renewal requirements, including whether additional research projects may be added or considered; conditions for license revocation; security measures to ensure marijuana is not diverted to purposes other than research or diverted outside of the regulated marijuana market; the amount of plants, useable marijuana, marijuana concentrates, or marijuana products a licensee may have on its premises; licensee reporting requirements; the conditions under which marijuana possessed by medical marijuana licensees may be donated to marijuana research and development licensees or transferred to a nonmetric-based research facility; provisions to prevent contamination; requirements for destruction or transfer of marijuana after the research is concluded; and any additional requirements;
A definition for "disproportionate impacted area" to the extent relevant state of Colorado data exists, is available, and is used for the purpose of determining eligibility for a social equity licensee; and
Such other matters as are necessary for the fair, impartial, stringent, and comprehensive administration of this article 10.
(2) Mandatory rule-making. Rules promulgated pursuant to section 44-10-202 (1)(c) must include but need not be limited to the following subjects:
Procedures consistent with this article 10 for the issuance, renewal, suspension, andrevocation of licenses to operate medical marijuana businesses and retail marijuana businesses;
Subject to the limitations contained in section 16 (5)(a)(II) of article XVIII of thestate constitution and consistent with this article 10, a schedule of application, licensing, and renewal fees for medical marijuana businesses and retail marijuana businesses;
Qualifications for licensure pursuant to this article 10, including but not limited to therequirement for a fingerprint-based criminal history record check for all controlling beneficial owners, passive beneficial owners, managers, contractors, employees, and other support staff of entities licensed pursuant to this article 10;
(I) Establishment of a marijuana and marijuana products independent testing andcertification program for marijuana business licensees, within an implementation time frame established by the department, requiring licensees to test marijuana and industrial hemp products to ensure, at a minimum, that products sold for human consumption by persons licensed pursuant to this article 10 do not contain contaminants that are injurious to health and to ensure correct labeling.
Testing may include analysis for microbial and residual solvents and chemical andbiological contaminants deemed to be public health hazards by the Colorado department of public health and environment based on medical reports and published scientific literature.
(A) If test results indicate the presence of quantities of any substance determined tobe injurious to health, the medical marijuana or retail marijuana licensee shall immediately quarantine the products and notify the state licensing authority. The state licensing authority shall give the licensee an opportunity to remediate the product if the test indicated the presence of a microbial. If the licensee is unable to remediate the product, the licensee shall document and properly destroy the adulterated product.
If retail marijuana or retail marijuana product test results indicate the presence ofquantities of any substance determined to be injurious to health, the state licensing authority shall give the licensee an opportunity to retest the retail marijuana or retail marijuana product.
If two additional tests of the retail marijuana or retail marijuana product do not indicate the presence of quantities of any substance determined to be injurious to health, the product may be used or sold by the retail marijuana licensee.
(IV) (A) Testing must also verify THC potency representations and homogeneity for correct labeling and provide a cannabinoid profile for the regulated marijuana product.
An individual retail marijuana piece of ten milligrams or less that has gone throughprocess validation is exempt from continued homogeneity testing.
Homogeneity testing for one hundred milligram servings of retail marijuana mayutilize validation measures.
The state licensing authority shall determine an acceptable variance for potency representations and procedures to address potency misrepresentations. The state licensing authority shall determine an acceptable variance of at least plus or minus fifteen percent for potency representations and procedures to address potency misrepresentations.
The state licensing authority shall determine the protocols and frequency of regulated marijuana testing by licensees.
A state, local, or municipal agency shall not employ or use the results of any test ofregulated marijuana or regulated marijuana products conducted by an analytical laboratory that is not certified pursuant to this subsection (2)(d)(VII) for the particular testing category or that is not accredited to the International Organization for Standardization/International Electrotechnical Commission 17025:2005 standard, or any subsequent superseding standard, in that field of testing. Starting January 1, 2018, a state, local, or municipal agency may use or employ the results of any test of regulated marijuana or regulated marijuana products conducted on or after January 1, 2018, by an analytical laboratory that is certified pursuant to this subsection (2)(d)(VII) for the particular testing category or is accredited pursuant to the International Organization for Standardization/ International Electrotechnical Commission 17025:2005 standard, or any subsequent superseding standard, in that field of testing.
On or before January 1, 2019, the state licensing authority shall require a medicalmarijuana testing facility or retail marijuana testing facility to be accredited by a body that is itself recognized by the International Laboratory Accreditation Cooperation in a category of testing pursuant to the International Organization for Standardization/International Electrotechnical Commission 17025:2005 standard, or a subsequent superseding standard, in order to receive certification or maintain certification; except that the state licensing authority may by rule establish conditions for providing extensions to a newly licensed medical marijuana testing facility or retail marijuana testing facility for a period not to exceed twelve months or a medical marijuana testing facility or retail marijuana testing facility for good cause as defined by rules promulgated by the state licensing authority, which must include but may not be limited to when an application for accreditation has been submitted and is pending with a recognized accrediting body.
The state licensing authority shall promulgate rules that prevent redundant testingof marijuana and marijuana concentrate, including, but not limited to, potency testing of marijuana allocated to extractions, and residual solvent testing of marijuana concentrate when all inputs of the marijuana concentrate have passed residual solvent testing pursuant to this subsection (2)(d).
Security requirements for any premises licensed pursuant to this article 10, including,at a minimum, lighting, physical security, video, and alarm requirements, and other minimum procedures for internal control as deemed necessary by the state licensing authority to properly administer and enforce the provisions of this article 10, including reporting requirements for changes, alterations, or modifications to the premises;
Labeling requirements for regulated marijuana and regulated marijuana products soldby a medical marijuana business or retail marijuana business that are at least as stringent as those imposed by section 25-4-1614 (3)(a) and include but are not limited to:
Warning labels;
Amount of THC per serving and the number of servings per package for regulatedmarijuana products;
A universal symbol indicating that the package contains marijuana; and
Potency of the regulated marijuana and regulated marijuana products;
Health and safety regulations and standards for the manufacture of regulated marijuana products and the cultivation of regulated marijuana;
Regulation of the storage of, warehouses for, and transportation of regulated marijuana and regulated marijuana products;
Sanitary requirements for medical marijuana businesses and retail marijuana businesses, including but not limited to sanitary requirements for the preparation of regulated marijuana products;
The reporting and transmittal of monthly sales tax payments by medical marijuanastores and retail marijuana stores and any applicable excise tax payments by retail marijuana cultivation facilities;
Authorization for the department to have access to licensing information to ensuresales, excise, and income tax payment and the effective administration of this article 10;
Compliance with, enforcement of, or violation of any provision of this article 10,section 18-18-406.3 (7), or any rule promulgated pursuant to this article 10, including procedures and grounds for denying, suspending, fining, restricting, or revoking a state license issued pursuant to this article 10;
Establishing a schedule of penalties and procedures for issuing and appealing citations for violation of statutes and rules and issuing administrative citations;
Medical marijuana transporter licensed businesses and retail marijuana transporterlicensed businesses, including requirements for drivers, including obtaining and maintaining a valid Colorado driver's license; insurance requirements; acceptable time frames for transport, storage, and delivery; requirements for transport vehicles; requirements for deliveries; and requirements for licensed premises;
Medical marijuana business operator licenses and retail marijuana business operatorlicensees, including the form and structure of allowable agreements between operators and the medical or retail marijuana business;
Nonescorted visitors in limited access areas;
Temporary appointee registrations issued pursuant to section 44-10-401 (2), including occupational and business registration requirements; application time frames; notification requirements; issuance, expiration, renewal, suspension, and revocation of a temporary appointee registration; and conditions of registration;
Requirements for a centralized distribution permit for medical marijuana cultivationfacilities or retail marijuana cultivation facilities issued pursuant to section 44-10-502 (6) or 4410-602 (7), including but not limited to permit application requirements and privileges and restrictions of a centralized distribution permit;
Requirements for issuance of colocation permits to a marijuana research and development licensee authorizing colocation with a medical marijuana products manufacturer or retail marijuana products manufacturer licensed premises, including application requirements, eligibility, restrictions to prevent cross-contamination and to ensure physical separation of inventory and research activities, and other privileges and restrictions of permits;
Development of individual identification cards for natural persons who are controlling beneficial owners, and any person operating, working in, or having unescorted access to the limited access areas of the licensed premises of a medical marijuana business or retail marijuana business including a fingerprint-based criminal history record check as may be required by the state licensing authority prior to issuing a card;
Identification of state licensees and their controlling beneficial owners, passive beneficial owners, managers, and employees;
The specification of acceptable forms of picture identification that a medical marijuana store or retail marijuana store may accept when verifying a sale, including but not limited to government-issued identification cards;
State licensing procedures, including procedures for renewals, reinstatements, initiallicenses, and the payment of licensing fees;
The conditions under which a licensee is authorized to transfer fibrous waste to aperson for the purpose of producing only industrial fiber products. The conditions must include contract requirements that stipulate that the fibrous waste will only be used to produce industrial fiber products; record-keeping requirements; security measures related to the transport and transfer of fibrous waste; requirements for handling contaminated fibrous waste; and processes associated with handling fibrous waste. The rules must not require licensees to alter fibrous waste from its natural state prior to transfer.
Requiring that edible regulated marijuana products be clearly identifiable, when practicable, with a standard symbol indicating that they contain marijuana and are not for consumption by children. The symbols promulgated by rule of the state licensing authority must not appropriate signs or symbols associated with another Colorado business or industry;
Requirements to prevent the sale or diversion of retail marijuana and retail marijuanaproducts to persons under twenty-one years of age;
The implementation of an accelerator program including but not limited to rules toestablish requirements for social equity licensees operating on the same licensed premises or on separate premises possessed by an accelerator-endorsed licensee. The state licensing authority's rules establishing an accelerator program may include requirements for severed custodianship of regulated marijuana products, protections of the intellectual property of a social equity licensee, incentives for accelerator-endorsed licensees, and additional requirements if a person applying for an accelerator endorsement has less than two years' experience operating a licensed facility pursuant to this article 10. An accelerator-endorsed licensee is not required to exercise the privileges of its license on the premises where a social equity licensee operates. The state licensing authority's implementation of an accelerator program is extended from July 1, 2020, to January 1, 2021.
Conditions under which a licensee is authorized to collect marijuana consumer waste and transfer it to a person for the purposes of reuse or recycling in accordance with all requirements established by the department of public health and environment pertaining to waste disposal and recycling. The conditions must include:
That the person receiving marijuana consumer waste from a licensee is, to the extentrequired by law, registered with the department of public health and environment;
Record-keeping requirements;
Security measures related to the collection and transfer of marijuana consumer waste;
Health and safety requirements, including requirements for the handling of marijuana consumer waste; and
Processes associated with handling marijuana consumer waste, including destructionof any remaining regulated marijuana in the marijuana consumer waste.
Requirements for a transition permit for medical marijuana cultivation facilities orretail marijuana cultivation facilities issued pursuant to section 44-10-313 (13)(c), including but not limited to permit application requirements and restrictions of a transition permit.
Requirements for medical marijuana and medical marijuana products delivery asdescribed in section 44-10-501 (11) and section 44-10-505 (5) and retail marijuana and retail marijuana products delivery as described in section 44-10-601 (13) and section 44-10-605 (5), including:
Qualifications and eligibility requirements for licensed medical marijuana stores, retail marijuana stores, medical marijuana transporters, and retail marijuana transporters applying for a medical marijuana delivery permit;
Training requirements for personnel of medical marijuana stores, retail marijuanastores, medical marijuana transporters, and retail marijuana transporters that hold a medical marijuana or retail marijuana delivery permit who will deliver medical marijuana or medical marijuana products or retail marijuana or retail marijuana products pursuant to this article 10 and requirements that medical marijuana stores, retail marijuana stores, medical marijuana transporters, and retail marijuana transporters obtain a responsible vendor designation pursuant to section 44-10-1201 prior to conducting a delivery;
Procedures for proof of medical marijuana registry and age identification and verification;
Security requirements;
Delivery vehicle requirements, including requirements for surveillance;
Record-keeping requirements;
Limits on the amount of medical marijuana and medical marijuana products andretail marijuana and retail marijuana products that may be carried in a delivery vehicle and delivered to a patient or parent or guardian or individual, which cannot exceed limits placed on sales at licensed medical marijuana stores;
Limits on the amount of retail marijuana and retail marijuana products that maybe carried in a delivery vehicle and delivered to an individual, which cannot exceed limits placed on sales at retail marijuana stores;
Inventory tracking system requirements;
Health and safety requirements for medical marijuana and medical marijuana products delivered to a patient or parent or guardian and for retail marijuana and retail marijuana products delivered to an individual;
Confidentiality requirements to ensure that persons delivering medical marijuanaand medical marijuana products or retail marijuana and retail marijuana products pursuant to this article 10 do not disclose personal identifying information to any person other than those who need that information in order to take, process, or deliver the order or as otherwise required or authorized by this article 10, title 18, or title 25;
An application fee and annual renewal fee for the medical marijuana delivery permit and the retail marijuana delivery permit. The amount of the fee must reflect the expected costs of administering the medical marijuana delivery permit and the retail marijuana delivery permit and may be adjusted by the state licensing authority to reflect the permit's actual direct and indirect costs.
The permitted hours of delivery of medical marijuana and medical marijuana products and retail marijuana and retail marijuana products;
Requirements for areas where medical marijuana and medical marijuana productsor retail marijuana and retail marijuana products orders are stored, weighed, packaged, prepared, and tagged, including requirements that medical marijuana and medical marijuana products or retail marijuana and retail marijuana products cannot be placed into a delivery vehicle until after an order has been placed and that all delivery orders must be packaged on the licensed premises of a medical marijuana store or retail marijuana store or its associated state licensing authorityauthorized storage facility as defined by rule after an order has been received; and
Payment methods, including but not limited to the use of gift cards and prepayment accounts.
(ee) (I) (A) Ownership and financial disclosure procedures and requirements pursuant to this article 10;
Records a medical marijuana business or retail marijuana business is required tomaintain regarding its controlling beneficial owners, passive beneficial owners, and indirect financial interest holders that may be subject to disclosure at renewal or as part of any other investigation following initial licensure of a medical marijuana business or retail marijuana business;
Procedures and requirements for findings of suitability pursuant to this article 10,including fees necessary to cover the direct and indirect costs of any suitability investigation;
Procedures and requirements concerning the divestiture of the beneficial ownershipof a person found unsuitable by the state licensing authority;
Procedures, processes, and requirements for transfers of ownership involving a publicly traded corporation, including but not limited to mergers with a publicly traded corporation, investment by a publicly traded corporation, and public offerings;
Designation of persons that by virtue of common control constitute controlling beneficial owners;
Modification of the percentage of owner's interests that may be held by a controllingbeneficial owner and passive beneficial owner;
Designation of persons that qualify for an exemption from an otherwise requiredfinding of suitability; and
Designation of indirect financial interest holders and qualified institutional investors.
(II) Rules promulgated pursuant to this subsection (2)(ee) must not be any more restrictive than the requirements expressly established under this article 10.
(ff) The implementation of marijuana hospitality and retail marijuana hospitality and sales business licenses, including but not limited to:
General insurance liability requirements;
A sales limit per transaction for retail marijuana and retail marijuana products thatmay be sold to a patron of a retail marijuana hospitality and sales business; except that the sales limit established by the state licensing authority must not be an amount less than one gram of retail marijuana flower, one-quarter of one gram of retail marijuana concentrate, or a retail marijuana product containing not more than ten milligrams of active THC;
Restrictions on the type of any retail marijuana or retail marijuana product authorized to be sold, including that the marijuana or product be meant for consumption in the licensed premises of the business;
Prohibitions on activity that would require additional licensure on the licensed premises, including but not limited to sales, manufacturing, or cultivation activity;
Requirements for marijuana hospitality businesses and retail marijuana hospitalityand sales businesses operating pursuant to section 44-10-609 or 44-10-610 in a retail food business;
Requirements for marijuana hospitality businesses and retail marijuana hospitalityand sales business licensees to destroy any unconsumed marijuana or marijuana products left behind by a patron; and
Rules to ensure compliance with section 42-4-1305.5; and
(gg) For marijuana hospitality businesses that are mobile, regulations including but not limited to:
Registration of vehicles and proper designation of vehicles used as mobile licensedpremises;
Surveillance cameras inside the vehicles;
Global positioning system tracking and route logging in an established route manifest system;
Compliance with section 42-4-1305.5;
Ensuring activity is not visible outside of the vehicle; and(VI) Proper ventilation within the vehicle.
(3) In promulgating rules pursuant to this section, the state licensing authority may seek the assistance of the department of public health and environment when necessary before promulgating rules on the following subjects:
(a) Signage, marketing, and advertising, including but not limited to a prohibition on mass-market campaigns that have a high likelihood of reaching persons under eighteen years of age for medical marijuana and have a high likelihood of reaching persons under twenty-one years of age for retail marijuana and other such rules that may include:
Allowing packaging and accessory branding;
Prohibiting health or physical benefit claims in advertising, merchandising, and packaging;
Prohibiting unsolicited pop-up advertising on the internet;
Prohibiting banner ads on mass-market websites;
Prohibiting opt-in marketing that does not permit an easy and permanent opt-outfeature; and
Prohibiting marketing directed toward location-based devices, including but not limited to cellular phones, unless the marketing is a mobile device application installed on the device by the owner of the device who is eighteen years of age or older for medical marijuana and twenty-one years of age or older for retail marijuana and includes a permanent and easy optout feature;
(b) A prohibition on the sale of regulated marijuana and regulated marijuana products unless the product is:
Packaged in packaging meeting requirements established by the state licensing authority similar to the federal "Poison Prevention Packaging Act of 1970", 15 U.S.C. sec. 1471 et seq., as amended; and
Placed in an opaque and resealable exit package or container meeting requirementsestablished by the state licensing authority at the point of sale prior to exiting the store;
The safe and lawful transport of regulated marijuana and regulated marijuana products between the licensed business and testing laboratories;
A standardized marijuana serving size amount for edible retail marijuana productsthat does not contain more than ten milligrams of active THC, designed only to provide consumers with information about the total number of servings of active THC in a particular retail marijuana product, not as a limitation on the total amount of THC in any particular item; labeling requirements regarding servings for edible retail marijuana products; and limitations on the total amount of active THC in a sealed internal package that is no more than one hundred milligrams of active THC;
Prohibition on or regulation of additives to any regulated marijuana product, including but not limited to those that are toxic, designed to make the product more addictive, designed to make the product more appealing to children, or misleading to consumers, but not including common baking and cooking items;
Permission for a local fire department to conduct an annual fire inspection of a medical marijuana cultivation facility or retail marijuana cultivation facility; and
A prohibition on the production and sale of edible regulated marijuana products thatare in the distinct shape of a human, animal, or fruit. Geometric shapes and products that are simply fruit flavored are not considered fruit. Products in the shape of a marijuana leaf are permissible. Nothing in this subsection (3)(g) applies to a company logo.
A requirement that every medical marijuana store and retail marijuana store post, atall times and in a prominent place, a warning that has a minimum height of three inches and a width of six inches and that reads:
Warning: Using marijuana, in any form, while you are pregnant or breastfeeding passes THC to your baby and may be harmful to your baby. There is no known safe amount of marijuana use during pregnancy or breastfeeding.
Equivalency. Rules promulgated pursuant to section 44-10-202 (1)(c) must also include establishing the equivalent of one ounce of retail marijuana flower in various retail marijuana products, including retail marijuana concentrate. Prior to promulgating the rules required by this subsection (4), the state licensing authority may contract for a scientific study to determine the equivalency of marijuana flower in retail marijuana products, including retail marijuana concentrate.
Statewide class system cultivation facility rules - medical marijuana. (a) The state licensing authority shall create a statewide licensure class system for medical marijuana cultivation facility licenses. The classifications may be based upon square footage of the facility; lights, lumens, or wattage; lit canopy; the number of cultivating plants; other reasonable metrics; or any combination thereof. The state licensing authority shall create a fee structure for the licensure class system.
(b) (I) The state licensing authority may establish limitations on medical marijuana production through one or more of the following methods:
Placing or modifying a limit on the number of licenses that it issues, by class oroverall, but in placing or modifying the limits, the state licensing authority shall consider the reasonable availability of new licenses after a limit is established or modified;
Placing or modifying a limit on the amount of production permitted by a medicalmarijuana cultivation facility license or class of licenses based upon some reasonable metric or set of metrics, including but not limited to those items detailed in subsection (5)(a) of this section, previous months' sales, pending sales, or other reasonable metrics as determined by the state licensing authority; and
Placing or modifying a limit on the total amount of production by medical marijuanacultivation facility licensees in the state collectively, based upon some reasonable metric or set of metrics including but not limited to those items detailed in subsection (5)(a) of this section, as determined by the state licensing authority.
(II) When considering any such limitations, the state licensing authority shall:
Consider the total current and anticipated demand for medical marijuana and medical marijuana products in Colorado;
Consider any other relevant factors; and
Attempt to minimize the market for unlawful marijuana; and
(c) The state licensing authority may adopt rules that limit the amount of medical marijuana inventory that a medical marijuana store may have on hand. If the state licensing authority adopts a limitation, the limitation must be commercially reasonable and consider factors including a medical marijuana store's sales history and the number of patients who are registered at a medical marijuana store as their primary store.
(6) Statewide class system cultivation facility rules - retail marijuana. (a) The state licensing authority shall create a statewide licensure class system for retail marijuana cultivation facility licenses. The classifications may be based upon square footage of the facility; lights, lumens, or wattage; lit canopy; the number of cultivating plants; other reasonable metrics; or any combination thereof. The state licensing authority shall create a fee structure for the licensure class system.
(b) The state licensing authority may establish limitations on retail marijuana production through one or more of the following methods:
Placing or modifying a limit on the number of licenses that it issues, by class oroverall, but in placing or modifying the limits, the authority shall consider the reasonable availability of new licenses after a limit is established or modified;
Placing or modifying a limit on the amount of production permitted by a retail marijuana cultivation facility license or class of licenses based upon some reasonable metric or set of metrics including but not limited to those items detailed in subsection (6)(a) of this section, previous months' sales, pending sales, or other reasonable metrics as determined by the state licensing authority; and
Placing or modifying a limit on the total amount of production by retail marijuanacultivation facility licensees in the state collectively, based upon some reasonable metric or set of metrics including but not limited to those items detailed in subsection (6)(a) of this section, as determined by the state licensing authority.
(c) Notwithstanding anything contained in this article 10 to the contrary, in considering any such limitations, the state licensing authority, in addition to any other relevant considerations, shall:
Consider the total current and anticipated demand for retail marijuana and retail marijuana products in Colorado; and
Attempt to minimize the market for unlawful marijuana.
The state licensing authority may deny, suspend, revoke, fine, or impose other sanctions against a person's license issued pursuant to this article 10 if the state licensing authority finds the person or the person's controlling beneficial owner, passive beneficial owner, or indirect financial interest holder failed to timely file any report, disclosure, registration statement, or other submission required by any state or federal regulatory authority that is related to the conduct of their business.
The state licensing authority shall treat a metered-dose inhaler the same as a vaporized delivery device for purposes of regulation and testing.
Source: L. 2019: Entire article added with relocations, (SB 19-224), ch. 315, p. 2843, § 5, effective January 1, 2020; (2)(ff) and (2)(gg) added, (HB 19-1230), ch. 340, p. 3118, § 14, effective January 1, 2020. L. 2020: (1)(i), (1)(j), and (2)(aa) amended and (1)(k) added, (HB 201424), ch. 184, p. 843, § 3, effective September 14.
Editor's note: This section is similar to former §§ 44-12-202 (3), (4), and (5) and 44-11202 (2)(a), (3)(a), and (4) as they existed prior to 2020.