The Six-Plant Loophole

A single plant producing multiple buds.

Opinion by Gerald Trumbule

Disclaimer: I am not an expert in anything; not a lawyer, not a chemist, not a farmer. What follows is my non-expert opinion, which is not intended to be advice.

Colorado's new Amendment 64 (A64) contains the following:

(3) Personal use of marijuana. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE UNDER COLORADO LAW OR THE LAW OF ANY LOCALITY WITHIN COLORADO OR BE A BASIS FOR SEIZURE OR FORFEITURE OF ASSETS UNDER COLORADO LAW FOR PERSONS TWENTY-ONE YEARS OF AGE OR OLDER:
(a) POSSESSING, USING, DISPLAYING, PURCHASING, OR TRANSPORTING MARIJUANA ACCESSORIES OR ONE OUNCE OR LESS OF MARIJUANA.
(b) POSSESSING, GROWING, PROCESSING, OR TRANSPORTING NO MORE THAN SIX MARIJUANA PLANTS, WITH THREE OR FEWER BEING MATURE, FLOWERING PLANTS, AND POSSESSION OF THE MARIJUANA PRODUCED BY THE PLANTS ON THE PREMISES WHERE THE PLANTS WERE GROWN, PROVIDED THAT THE GROWING TAKES PLACE IN AN ENCLOSED, LOCKED SPACE, IS NOT CONDUCTED OPENLY OR PUBLICLY, AND IS NOT MADE AVAILABLE FOR SALE.
(c) TRANSFER OF ONE OUNCE OR LESS OF MARIJUANA WITHOUT REMUNERATION TO A PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER.
(d) CONSUMPTION OF MARIJUANA, PROVIDED THAT NOTHING IN THIS SECTION SHALL PERMIT CONSUMPTION THAT IS CONDUCTED OPENLY AND PUBLICLY OR IN A MANNER THAT ENDANGERS OTHERS.
(e) ASSISTING ANOTHER PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER IN ANY OF THE ACTS DESCRIBED IN PARAGRAPHS (a) THROUGH (d) OF THIS SUBSECTION.

I have a friend (with a Medical Marijuana red-card license) who has allowed me to document his "grow" over the past two summers. He grows his pot in his back yard, outdoors, which has a six-foot wooden fence around it, with a locked gate, and which is not visible from the alley or street. He believes that he is in compliance with the MMJ rules and will be in compliance with A64. He uses various commercial plant additives to enhance his grow.

He buys clones from a MMJ dispensary in the early spring, when they are about 1-ft tall, at a cost of $10 each. Last year his harvest from the six plants, after separating the buds from the stalk and extraneous leaves, was 15 pounds, or 240 ounces. This was greatly in excess of what he uses himself, so he gave a lot of it away.

This year his plants grew very well, (4 of the 6 were over 6ft tall) and after harvest he decided to process the raw plant into a more condensed form. He purchased a set of micro-fiber bags and used a dry-ice separation technique (Google: bubble hash). This technique separates the resin glands (trichomes) from the plant material and yields a fine powder (kief), which is where the THC and other cannabinoids reside. His yield this year from the 6 plants was 400 grams of kief. He says this "shit" is really "kick-ass". His own use is less that 1 gram/week, so he plans to give a lot of it away.

Let's assume that marijuana is like everything else, subject to the law of supply and demand. My thesis here is that if 1 out of 5 pot users grows and gives away his excess, the price of this product sold on the open market should fall to near zero. In other words, marijuana, a weed, will be worth what a weed should be worth, nearly nothing. See this article on The Production Cost of Marijuana. This will remove the financial incentive, both criminal and commercial.

In Colorado, pot will eventually be free, and tax free. Of course, various "value-added" businesses, such as Amsterdam-style coffee shops, may be created. Maybe it will be used as a give-away. "Stop by to pick up your free ounce of pot with every lube job."

Unknowns
1. My friend doesn't distinguish between "flowering" and "non-flowering". A64 does, although it does not define "flowering". It is hard to imagine the State having enough inspectors to tramp around through all of the (unregistered) citizen growers backyards checking to see if and when a weed flowers. I'm not even sure that an un-pollinated plant can even produce a "flower".
2. Paragraph (e) states (e) ASSISTING ANOTHER PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER IN ANY OF THE ACTS DESCRIBED IN PARAGRAPHS (a) THROUGH (d) OF THIS SUBSECTION.
Does this mean that my friend can host his friends growing their 6 plants in his back yard? If he has 10 friends can he grow 60 plants?
3. My friend has only one growing season per year. If he had an indoor-grow room, I'm assuming he could have at least 4 seasons per year, and 4 times as much to give away.
4. All of the discussion above ignores the role that the Federal government will play in this unfolding drama. Time will tell, but it is hard to imagine any Federal force large enough to enforce the old rules.
Then again, I did have Federal agents pay me a visit back in the '60s when I refused to pay the new "telephone" tax used to subsidize the bombing of Vietnamese citizens. I owed $1.64 and they sent two agents. As they were leaving with my check for $1.64, one told me that Nixon wanted this tax collected "no matter what the cost". He said it was costing about $100 for every $1 collected. Proof that there is no telling what lengths an irrational government will go to enforce an irrational policy.

Update 11/25/12 from the Denver Post:

For instance, the measure gives individuals the constitutional right to grow up to six marijuana plants and keep all of the harvest from those plants without fear of state prosecution. There are no limits on how big the plants can be, Corry said. The measure also allows people to join together to grow marijuana — meaning people could form large-scale cooperatives that produce marijuana by the pound without needing a license so long as none of the marijuana is sold, Corry said.
And, because the measure prohibits marijuana use only that is done "openly and publicly or in a manner that endangers others," Corry said private businesses will be able to allow marijuana smoking on site.
"You can have an Amsterdam-style private coffee shop," Corry said at Tuesday's forum.