Seven Questions About Marijuana Legalization

RAND researcher nails it neatly.

I’ve been meaning to offer up the key points from an excellent column on marijuana legalization that appeared in April in USA Today. Beau Kilmer, a senior policy researcher at the RAND Corporation, lists the “new and tricky issues” that Colorado and Washington forgot to consider in depth before passing broad legalization statutes.

Both states are works in progress. What they have passed so far will undoubtedly be revisited. Without further ado, here are Kilmer’s “Seven Ps,” as I call them:

Production. Who gets to grow it, where do they get to grow it, and how much do they get to grow? Will the business model be Starbucks, Jack Daniels, or your local organic family farm? Will it be legal on large commercial operations, indoor growing rooms, backyard gardens? All of this matters economically, since it’s likely that legalization will force down the price of marijuana, as growers will be able to operate in the open, and middlemen won’t have to worry about arrest. Implicit in this category are things like product testing and product safety.

Profit. If the history of cigarette and alcohol regulation have any bearing on the matter (and they do), it’s likely that marijuana marketers will want to concentrate promotional efforts on the heaviest smokers. States might decide to limit production to mom-and-pop home producers—or try to, at least. Or they could throw the door open to marijuana in the free market, and attempt to regulate the for-profit corporations that flock to the new opportunity. Monopolistic practices, collusion, price-fixing, bribes, payoffs to government officials—the whole panoply of corporate malpractice would be available to Big Pot if things go that way.

Promotion. The California medical marijuana movement got itself in hot water straightaway by hiring sign pointers to stand on Los Angeles street corners and advertise the cheapest Ozs in the neighborhood. Not smart. States that legalize will likely need to pursue some form of restriction on advertising for institutions or storefronts selling marijuana. However, as the cigarette industry has shown in its successful effort to block mandatory graphic warnings on packaging, companies are availing themselves of 1st Amendment defenses as a way of demolishing attempts to restrict advertising and promotional activities. Since corporations are now officially people, it looks, so far, like a winning strategy in court.

Prevention. States will obviously enact some age restrictions, which haven’t been terribly effect with cigarettes and alcohol. In addition, the decades-old message to America’s schoolchildren about staying “chemical-free,” starting with the evil weed, will have to be revisited and revised. The pioneering states have expended much time and verbiage on the subject of how much to tax marijuana sales, and a good deal less time on whether any of that tax money will go for prevention efforts, or for addiction treatment. Yes, pot is addictive for some people, and pot smokers who are lucky enough not to have this problem cannot seem to summon much sympathy for those who do. This will have to change, as marijuana addiction and withdrawal enter the public sphere with legalization.

Potency. If you count butane hash oil, or “dabbing,” the potency of modern seedless marijuana ranges from about 15 per cent to as high as 90 per cent THC. Yes, that’s quite a bit higher than the shoebox full of Mexican from the good old days. Arguments rage in the research community over the effect of strong pot, and whether it increases cognitive deficits, general anxiety, panic attacks, and even mental illnesses. Beer, wine and alcohol have mandated strength levels, printed right there on the bottle. Something similar will likely have to be crafted for marijuana.

Price. How elastic is the price of pot? Could heavy taxation push the whole game back underground? What’s a fair market price for a quarter of Train Wreck? “Retail prices will largely be a function of consumer demand, production costs and tax rates,” writes Kilmer. “The way taxes are set will also have an effect on what’s purchased and consumed—that is, whether pot is taxed by value, total weight, THC content, or other chemical properties.”

Permanency. With legalization, we are likely to see a pioneer penalty: “The first jurisdictions to legalize pot will probably suffer growing pains and want to make changes later on,” Kilmer believes. He envisions a powerful lobbying organization putting the arm on legislators on behalf of a newly legal and seriously profitable line of business. It would be best if legislation comes with maximum flexibility to make future changes, so states can adapt their operations as the thing plays out on the ground for the first time.


I personally understand and sympathize with the drive for legalization. I also think that Colorado and Washington have jumped first, and plan to think later, sorting it all out in freefall. That seems like a possible recipe for disasters large and small. Moving a popular drug across the legal/illegal line is a bit like getting molecules through the blood-brain barrier: It can be done, but it had better be done with sufficient care and forethought.

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Praising Marijuana Prohibition

The view from the White House.

As regular readers of Addiction Inbox will know, I am on record as favoring some form of decriminalization for marijuana. But I also write regularly about the difficulties of marijuana addiction and withdrawal. And I have been critical of the operational strategies employed by the medical marijuana movement in the several states in which it now operates. What I have not done, to date, is offer up the official view of a drug policy analyst from the Obama administration who straightforwardly favors a continuation of the legal prohibition against marijuana. 

One of the architects of the current federal resistance to marijuana legalization is Kevin Sabet, an assistant professor and the director of the Drug Policy Institute at the University of Florida College of Medicine. Sabet served from 2009 to 2011 in the Obama Administration as Senior Advisor for the White House Office of National Drug Control Policy (ONDCP) under Drug Czar Gil Kerlikowske, and was influential in shaping federal marijuana policy. Sabet consults with governments and NGOs on a wide range of drug policy prevention issues, and recently debated legalization advocate Ethan Nadelmann on CNN. He is also a regular columnist for thefix.com  and Huffington Post. He agreed to participate in a frank and lengthy 5-question interview with Addiction Inbox. (Be sure to check out the comments below).

1. In his new book, Too High to Fail, journalist Doug Fine argues that "the Drug War is as unconscionably wrong for America as segregation or DDT." Would you comment on this sweeping condemnation?

First, I think it is interesting to note that only people who want to condemn all of our current drug policies use the term "drug war." No one in serious policy circles uses that term anymore, and that is because it is woefully inadequate and vague as a way to describe a whole slew of policies designed to both reduce drug prevalence and drug consequences. I think his comparison is clumsy and unfair. Do some drug policies hurt disadvantaged groups? Of course they do. Is it a moral imperative to fix those policies, learn from our past mistakes and make our policies better? Of course it is. There's no reason to think that those policies can't be changed—in the White House in 2009, for example, we drastically reduced the penalty for crack cocaine. But what makes Mr. Fine's comparison even more wrong-headed and backwards is that we know that if we scale-up—not eliminate, as he would—the policies we know do work in reducing drug use and its consequences, all communities in America would benefit. A handful include:

(a) community-based prevention that not only focuses on stopping drug use among school kids, but in changing bad local laws and ordinances that promote underage drinking, smoking, and marijuana use (so-called "environmental policies");

(b) early intervention and detection of drug use in health settings;

(c) evidence-based treatment, including methadone and buprenorphine, as well as 12-step programs;

(d) recovery-based policies that don't penalize people for past drug use and instead facilitate recovery;

(e) law enforcement based on credible threats and modest sanctions.

2. The Drug War is an industry—the DEA alone has a budget of 2 1/2 billion and employs almost 10,000 people. If we add in profits from the private prison industry, and the money-laundering banks, the money is staggering. Wouldn't it make sense to recoup those historical costs by legalizing and taxing marijuana?

That phrase assumes two things: (a) criminal justice and regulation costs would be drastically reduced, or eliminated, with marijuana legalization; and (b) the underground market would be eliminated with marijuana legalization. Both of those assumptions are huge leaps that don't stand up to our experience with our already two legal drugs—alcohol and tobacco.

First, we know that legalization means more consumption. More consumption means more regulation. Today we have liquor laws, laws against drinking and driving, laws against public drunkenness, etc. With regards to legal alcohol, we make 2.6 million arrests every year for the violation of those laws. Meanwhile, we arrest a million fewer times for illegal drugs (1.6 million/year). Legal alcohol costs us money with regards to crime and regulation. I think that is a big consideration in this whole debate that we rarely hear about. So that means we'd have to have more prisons, more police, and more regulation costs under legalization—especially since few people are in prison or jail solely for marijuana use.

And I'm not so sure the underground market would be eliminated with marijuana legalization. Especially if it is taxed heavily, the incentive for the underground market—having been painstakingly established for decades by multinational corporate structures (cartels)—is very little. We'll still need a black market for underage marijuana, for marijuana to be sold to repeat offenders, etc. I just don't see the cartels throwing up their hands and saying "OK, it's legalized. We're out of the game now. Let's get into the ice cream business."

3. A "Pax Cannabis" would require rescheduling marijuana at the federal level, with an overt recognition that marijuana has some redeeming medical value. What's the argument for maintaining cannabis as a Schedule 1 drug along with heroin, a drug with which it has almost nothing in common? Could you comment on the upcoming U.S. Appeals Court consideration of medical marijuana?

Rescheduling marijuana is one of the biggest red herrings I can think of in this debate. If rescheduled tomorrow, it would do nothing to allow marijuana to be sold legally. Rather, it would be a huge symbolic victory for marijuana advocates -- but it would be wholly wrong on the science. Placing a drug in schedule 1 simply means the drug has no medical use and a high potential for abuse. It has nothing to do with the other drugs in that category (e.g. heroin). If it were a drug, a telephone would also need to be in Schedule 1 - I'm addicted to my cell phone and I know it has no medical use. That doesn't mean a phone is as dangerous as a syringe of heroin.  Today, cocaine is Schedule 2 because it has some very limited hospital use. Can a 21-year-old kid with no medical knowledge sell cocaine from a "dispensary" called "Happy Clinic" legally? Of course not, though that is what is happening [with marijuana] in California.

In order to be used for medical use, a specific product needs to be approved by FDA. Marijuana's specific product, so far, is Marinol, a Schedule 3 drug which has been approved by FDA and is used by people throughout the world. Crude, raw marijuana is not a specific product. The best way I can put it is this: We don't smoke opium to get the effects of morphine, so why do we think we need to smoke marijuana to get its potential medical effects? We have non-inhaled medications that are approved and we have others on the way. For a lot more on this, you can check out an article I wrote for Join Together. I think the District court opinion will rest on the science and agree with the Department of Health and Human Services that raw, crude marijuana is not medicine.

4. Alaska decriminalized marijuana in 1975, and only recriminalized after lengthy pressure from the Reagan administration. Isn't cultivation of this flowering weed for personal use the most obvious and straightforward solution?

The Reagan Administration could have cared less about Alaska, frankly. Alaska recriminalized because voters there wanted that to happen. They didn't like the effect of decriminalization on their state. That said, I don't think many people are in favor—and I am not—of locking up people smoking small amounts of marijuana. That isn't happening anywhere. One notable exception is New York City where they impose 24-hour detentions for public use and selling as part of their broken windows approach to crime control.

Indeed, in the 1970s, twelve states formally decriminalized marijuana. This meant that persons found to have a small amount of marijuana were not subject to jail time, but rather they would receive a civil penalty, such as a fine. The discussion in the United States is highly complex because even in jurisdictions without a formal decriminalization law, persons are rarely jailed for possessing small amounts of cannabis. A rigorous government analyses of who is in jail or prison for marijuana found that less than 0.7% of all state inmates were behind bars for marijuana possession only (with many of them pleading down from more serious crimes).[1] Other independent research has shown that the risk of arrest for each “joint,” or cannabis cigarette, smoked is about 1 arrest for every 12,000 joints.[2] This probably explains the fact that the literature on early decriminalization effects on use has been mixed. Some studies found no increase in use in the so-called “depenalization” states, whereas others found a positive relationship between greater use and formal changes in the law.[3]

The more recent discussion about state-level legalization may provide more insights. Two RAND Corporation reports concluded that legalization would result in lower cannabis prices, and thus increases in use (though by how much is highly uncertain), and that “legalizing cannabis in California would not dramatically reduce the drug revenues collected by Mexican drug trafficking organizations from sales to the United States.”[4]

5. Marijuana advocates don't like to hear it, but pot is addictive for some users. Where do you stand on this controversial issue?

Science tells us that marijuana is addictive—about 1 in 11 people who ever smoke marijuana are addicted; but if you start in adolescence that number climbs to 1 in 6. That's not anyone's opinion but rather the result of rigorous scientific research done by the National Institutes of Health and confirmed by other international scientific bodies. Is marijuana as addictive as tobacco cigarettes? No. The addiction rate for tobacco is about 1 in 3; for heroin it is lower, about 1 in 4. Users who try to quit experience withdrawal symptoms that include irritability, anxiety, insomnia, appetite disturbance, and depression.

A United States study that dissected the National Longitudinal Alcohol Epidemiologic Survey (conducted from 1991 to 1992 with 42,862 participants) and the National Epidemiologic Survey on Alcohol and Related Conditions (conducted from 2001 through 2002 with more than 43,000 participants) found that the number of cannabis users stayed the same while the number dependent on the drug rose 20 percent ­ from 2.2 million to 3 million.[5]Authors speculated that higher potency marijuana may have been to blame for this increase. As I've heard said many times by experienced tokers, "this isn't your Grandfather's Woodstock Weed."

[1] “Substance Abuse and Treatment, State and Federal Prisoners, 1997.” BJS Special Report, January 1999, NCJ 172871. http://www.ojp.usdoj.gov/bjs/pub/pdf/satsfp97.pdf

[2] Beau Kilmer, Jonathan P. Caulkins, Rosalie Liccardo Pacula, Robert J. MacCoun, Peter H. Reuter, Altered State? Assessing How Cannabis Legalization in California Could Influence Cannabis Consumption and Public Budgets, RAND, 2010.

[3] For a discussion see MacCoun, R., Pacula, R. L., Reuter, P., Chriqui, J., Harris, K. (2009). Do citizens know whether they live in a decriminalization state? State cannabis laws and perceptions. Review of Law & Economics, 5(1), 347-371.

[4] Beau Kilmer, Jonathan P. Caulkins, Rosalie Liccardo Pacula, Robert J. MacCoun, Peter H. Reuter, Altered State? Assessing How Cannabis Legalization in California Could Influence Cannabis Consumption and Public Budgets, RAND, 2010. And see Kilmer, Beau , Jonathan P. Caulkins, Brittany M. Bond and Peter H. Reuter. Reducing Drug Trafficking Revenues and Violence in Mexico: Would Legalizing Cannabis in California Help?.Santa Monica, CA: RAND Corporation, 2010. http://www.rand.org/pubs/occasional_papers/OP325. Also available in print form.

[5] ]Compton, W., Grant, B., Colliver, J., Glantz, M., Stinson, F. Prevalence of Cannabis Use Disorders in the United States: 1991-1992 and 2001-2002Journal of the American Medical Association.. 291:2114-2121.

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Status of Medical Marijuana to be Tested in U.S. Appeals Court

Ten-year old petition could change everything.

Medical marijuana advocates will finally have their day in federal court, after the United States Court of Appeals for D.C. ended ten years of rebuffs by agreeing to hear oral arguments on the government’s classification of marijuana as a dangerous drug.

A decision in the case could either finish off medical marijuana for good, or else upend the fed’s rationale for its stepped-up war against the medical marijuana industry. Americans for Safe Access v. Drug Enforcement Administration asks that the federal government review the scientific evidence regarding marijuana’s therapeutic value. The D.C. Circuit Court of Appeals has agreed to do so in October.

The original petition, filed by the Coalition for Rescheduling Cannabis (CRC) in 2002, has languished in obscurity, but recent moves to have marijuana rescheduled from its status as a Schedule 1 drug—a class that includes heroin—have increased in the wake of America’s Civil War over medical marijuana.  “This is a rare opportunity for patients to confront politically motivated decision-making with scientific evidence of marijuana’s med efficacy,” said Joe Elford, chief council for Americans for Safe Access, the group that successfully challenged the denial of the original CRC petition. “What’s at stake in this case is nothing less than our country’s scientific integrity and the imminent needs of millions of patients.”

The Controlled Substance Act reserves Schedule 1 for drugs that “have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and there is lack of accepted safety for use of the drug or other substance under medical supervision.”

Recently, an article by Dr. Igor Grant in the Open Neurology Journal argued that marijuana’s Schedule 1 classification and surrounding political controversy were “obstacles to medical progress in this area.”

Seventeen states have now adopted some form of medical marijuana law, but the nascent field remains in limbo due to federal regulations about the illegality of marijuana use. Over the past year, the U.S. Justice Department has stepped up its pressure on medical marijuana purveyors, culminating in dozens of indictments, seizures, and shutdowns. Most recently, the Los Angeles City Council simply threw up its hands and banned most marijuana dispensaries in the city. But it’s not even clear if the ban on state-legal dispensaries is itself legal. A pot collective in Covina recently won its challenge to a blanket ban on pot sales in unincorporated areas of Los Angeles County in the state’s 2nd District Court of Appeal. As a Los Angeles Times editorial aptly put it, “we’re confused about how to legally restrict a quasi-legal business.”

According to Chris Roberts, writing in the SF Weekly, “the court hearing would be the first time the medical merits of cannabis would be examined in a federal courtroom since 1994.” At the core of the argument is the federal government’s contention that the marijuana plant has no redeeming medical value, as opposed to the mountain of scientific studies suggesting that marijuana may be applicable in the treatment of glaucoma, cancer, chronic pain, and possibly other conditions, such as multiple sclerosis.

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