Making the case for regulated drug markets

Today the blog returns to the serialisation of Transform's Autumn 2007 publication 'After the War on Drugs, Tools for the Debate'.

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Chapter 4: Making the case for regulated markets

Although it is important to expose the shortcomings of current drug policy, no amount of devastating critique of prohibition will achieve very much unless a convincing case for an alternative policy is made. The big problem with the so-called ‘legalisation lobby’ in the past is that brilliant critique has tended to be followed with a one word solution – ‘legalisation’. Chapter 4 considers how to advocate clearly what the replacement for prohibition will look like, and the principles by which such policy alternatives will be developed and implemented. Chapter 5 chapter considers a number of the most common concerns raised about a post-prohibition world, and how these concerns can be addressed.

From 'legalisation' to 'regulation'

The alternative to the current system of drug prohibition needs to be clearly and confidently specified. Just saying ‘legalisation’ is inadequate - and indeed problematic, as the term comes with a lot of baggage. For many people it is associated with either ‘hippies and pot-heads’, specific political ideologies (usually libertarianism or liberalism) that condone the use of drugs, or suggests a surrender’ in the drug war that would leave us with some sort of un-policed ‘free for all’.

Using the term in isolation creates a vacuum that will be filled by such misconceptions (which are regularly promoted by prohibition’s advocates and political beneficiaries)– frequently of the 'heroin would be available in sweet shops’ variety.

In actuality the term ‘legalisation’ describes a process (rather like ‘abolition’)- in this case the process of something currently illegal being made legal – rather than an end point or goal in itself. It gives no indication what the policy replacing prohibition would look like. For this reason it is very important that the term is clarified as soon and often as possible.

Explain what you mean by ‘legalisation’ at the earliest opportunity and try to talk about ‘regulation and control’ as often as possible. There is no harm in repeating the phrase – in fact we would encourage it. Avoiding the term ‘legalisation’ altogether is no bad thing, but if it is unavoidable, either use it in the phrase ‘legalisation and regulation’ or make it clear it is a process not an end point: ‘legalisation is necessary to move from prohibition to legally regulated markets’. A useful alternative is to talk about ‘moves towards legal regulation and control’, or ‘legally regulated drug markets’ .

Be clear about what regulated markets are, and what they are not

Once you have clarified that your understanding of ‘legalisation’ is very specifically ‘regulation and control’, whenever possible it is worth going further to explain in very clear terms more precisely what you are proposing and the principles on which future policy developments would be based.

Some activities and products would remain prohibited as part of the regulatory framework.

This is hugely important point to make as it reinforces the idea of control, and moves perceptions away from the misconceptions of ‘legalisation’ and libertarian free markets. Activities that would remain prohibited would include, for example, underage sales, consumption in public, unlicensed sales, advertising and so on. Similarly, supply of certain particularly potent or high risk preparations of some drugs would also remain prohibited. All psychoactive drugs are potentially dangerous substances that should be subject to tight legal and social regulations. We should learn the lessons from tobacco and alcohol (see– ‘talking about… alcohol and tobacco’ on p.37). The level of enforcement, and associated penalties for activities that remain prohibited, would be determined by legislation, police force or local licensing body as appropriate.

Discussing the role of ‘prohibitions’ post legalisation may be a bit confusing; to avoid this, talk about replacing ‘absolute prohibition’ or ‘the war on drugs’ with ‘a system of strict legal regulation and control in which some activities remain prohibited’.

Make it clear you are not talking about a free market...

.. that would give carte blanche to multinationals and pharmaceutical companies to market or promote recreational drugs (see ‘concerns about legalisation/regulation’ on p.46). Producers would be strictly regulated, particularly with regard to advertising, marketing, health warnings and packaging.

Different regulatory regimes would be put in place for different drugs in different locations.

The strictness of regulation for different drugs (or different preparations of a given drug) would be determined by the comparative risks associated with their production, supply and use.

Regulatory regimes would be based on existing models

This is a point that allows people some real world perspective on what is being proposed. Models include;

• Medical prescription (possibly involving supervised use) for the most risky drugs (e.g. injectable heroin – the legal framework for which already exists in practice)
  
  
• Over the counter pharmacy sales – from qualified pharmacists (possibly with additional training for vending non-medical drugs)

• Licensed sales (as with off licenses or tobacconists) with various available tiers of licensing conditions that could be applied as appropriate

• Licensed premises (pubs or Dutch style coffee-shops) again, with variable licensing conditions.

• Unlicensed sales for low risk drugs – like coffee

(for more discussion of regulatory models see the Transform, KCBA and HOBC reports detailed in Chapter 6, p.59).

The type of regulation for each drug would be based on evidence of what works.

Unlike the inflexible straitjacket of prohibition, a regulatory regime could develop a range of responses to the risks that different drugs present. Different models would be piloted and tested, with policy development and implementation based on evidence of effectiveness. Regulatory frameworks could be changed and updated in response to changing circumstances.

Implementation would be phased and based on the precautionary principle.

Regulated models would not be rolled out for all drugs overnight. It is likely that certain drugs would be legalised and regulated first (probably cannabis) and other drugs phased in over a number of years. Initially the default position would be to err on the side of stricter regulation, which could then be relaxed only if evidence suggested that would be more effective.

Internationally, this is about returning democratic freedoms to sovereign states.

Under this new system no country is going to be bullied into legalising and regulating any drug (in contrast to the bullying to maintain prohibition that many experience now). The changes we are seeking at the international level would change the UN legal system to allow the freedom of individual states to democratically decide on any move towards regulated drug markets if they determined that was the best way forward for them. It would merely put regulatory policy options back in the frame. If certain nation states (those, perhaps, where alcohol is still prohibited) wished to maintain absolute prohibition, that decision would remain their sovereign right.

part 1
part 2
part 3
part 4
part 5
part 6
part 7
part 8

Print copies are also available, please contact Transform