Drug warriors coming in from the cold? Calls for legal marijuana to be strictly regulated

With US support for the legalisation of cannabis/marijuana fast approaching the 50% threshold  (California's Prop 19 legalisation ballot measure recently polling the highest ever US support, at 46.1%), and a string of new referendums and Bills coming up in the next couple of years, the debate is moving from if marijuana is legally regulated, to how to regulate it properly. Arguably it was concerns about the legislation in practice rather than priciple that led to Prop 19 falling short. 

US views on marijuana laws - from Nate Silver's fivethirtyeight blog

An interesting sign of the changing debate is that even a year ago it would have been unthinkable for a historically prohibitionist US organisation like National Families in Action to launch “But What About the Children" campaign. In their own words this is:

“…a campaign to hold a legalized marijuana industry accountable for ensuring that children will not have access to the drug if any law is passed to legalize the drug. The campaign holds that any marijuana legalization law should incorporate provisions to avoid what medical science has learned about alcohol and tobacco use in order to prevent marijuana use and addiction among children.”

In other words, whilst NFIA remains adamantly opposed to marijuana legalisation, it recognises it is now on the cards, and if it happens, then production and supply should be properly regulated. It is particularly interesting to see the 'imperilled child' narrative - so long used to argue against drug law reform - now being used as the basis for a call for more effective market regulation (based in significant part on lessons learned from mistakes with alcohol and tobacco regulation). Quite right too.

Given research shows steadily increasing availability and falling price, and that 80-90% of US 12th graders have easy access to cannabis, (many finding alcohol harder to get), amongst the many benefits of legal regulation of the currently criminal trade, regulation presents an obvious opportunity to protect children and young people. Below are NFIA’s suggestions for how regulation should function, with some added commentary and quotes from the relevant sections of Transform's recent 'Blueprint for Regulation (pdf)', (see in particular the chapter on cannabis regulation, page 110).

10 Provisions to Protect Children if States or Local Communities Legalize Marijuana

 1. No Advertising - An advertising ban on legal marijuana.

 From Blueprint (p.48):

"Links between the advertising and promotion of alcohol and tobacco products, and increased levels of usage of those products, are well established. Such advertising and promotion could easily drive a similar expansion in psychoactive drug usage. 

Therefore, the default position of any licensing regime should be a complete ban on all advertising, promotion or marketing of all drugs, with any exceptions made only on a cautious case by case basis by the relevant authorities. This ban should include any alcohol and tobacco marketing activities. A default ban should also exist on political donations from any commercial opera­tors in the drugs market. 

The distinct nature of drug risks relative to most other commodities, and the particular need to protect vulnerable groups from exposure to these risks, justifies this stringent restriction of standard commercial freedoms. These controls should extend to point of sale advertising, and the external appearance and signage for outlets.

Such controls should be as strict as possible, within the context of local legal regimes. For example, in the US, a free speech argument can be made against such a ban. However, even though the Supreme Court has extended a degree of ‘free speech’ protection to commercial speech, such speech is still subject to various controls and limitations."

Interestingly the NFIA site specifically discusses the free speech point here.  In Blueprint there is some additional detailed discussion on how this ban might operate for cannabis specifically on page 114 (see also - point 4 below).   

 2. A Penalty Fee - on the marijuana industry for every underage user.

Retailers selling to those underage should face a hierachy of penalties including fines and loss of licenses, potentially even criminal sanctions, as should producers found to be colluding in this practice. However it would be unfair to fine legitimate producers and retailers meeting their legal duties. There is no obvious equivalent to this suggestion in alcohol and tobacco policy, although taxes (sometimes described as 'sin taxes') could be seen as a parallel despite generally being argued as a form of dissuasion and/or income generation.  Blueprint does, however, call for vendors to have 'Shared responsibility re: nuisance in the immediate environment, litter, local enforcemetn costs'

3. Automatic Repeal of marijuana legalization if underage marijuana use exceeds certain levels.

Presumably the NFIA does not think prohibition should be repealed if use hits a certain level! Drug policy should be based on evidence of what works best for society, not arbitrary levels of use. Levels of use and misuse are influenced primarily by a complex interplay of social economic and cultural variable (for which the industry is not responsible)  not drug policy or legislation. However, Blueprint does, none the less, urge caution (p.68):

"This [cautious phased introduction] approach should be, by default, based on a precautionary prin­ciple, particularly where evidence from existing policy is thin, or specific high-risks are identified. New models will thus initially err towards stricter, more intrusive regulation, with lower restriction levels only subsequently coming into play. A precautionary and incremental approach allows for key concerns, such as availability to youth, increase in high risk behaviours or other specific public health concerns, to be closely monitored. If problems do arise, policy can take a step back, be refined and adjusted, and alternative or additional regulatory tools can be deployed."

4. No Product Placements, sponsorships, point-of-purchase marketing, or depictions in entertainment venues.

Broadly speaking we support this. The discussion of cannabis regulation in Blueprint (p 114) suggests that:

"Cannabis use is embedded in much popular culture. Cannabis products and product  iconography are generally non-branded and generic, so a blanket prohibition of anything that might constitute promotion or advertising of cannabis would therefore be impractical. Reasonable controls on exposure to children and young people may be easier to put in place, but would remain difficult to globally define and enforce. However, best practice and evidence from existing controls already widely applied to references to drugs—legal and illegal—in youth media and advertising can be more widely applied.

 Clear lessons can be learnt from experiences with restrictions on promotions and marketing of alcohol and tobacco. Areas where cannabis advertising promotion controls are more realistic include:

Advertising for venues for commercial sales could be limited both in content and scope—for example, to specialist publications, or adult only venues. A complete ban on advertising for promotion of venues is not realistic. Dutch coffee shops are not allowed to advertise but do to some extent—the prohibition in practice acts as a moderating influence, rather than a total ban

Restrictions could be placed on appearance and signage of venues/outlets. In the Netherlands, coffee shops are not allowed to make external references to cannabis, or use related imagery. Rastafari imagery, a palm leaf image, and the words ‘coffee shop’ have become the default signage.

Restrictions could be placed on advertising for certain types of paraphernalia that contain drug references."

5. An Industry-Financed Fund from marijuana profits to pay for the damage legal marijuana will do, so that taxpayers won’t have to pick up the tab.

There is a mistaken presumption here that legal marijuana will do more damage, and incur more cost, than illegal marijuana - the tab for which taxpayers already pay - as well as the huge enforcement tab. The industry should be taxed at an appropriate level to balance the potentially conflicting interests of maximising returns, influencing use levels and minimising the illegal markets (see price controls discussion in Blueprint on page 41) .Any tax income (and it is assumed this would be significant given the scale of the market) could support proven public health interventions including treatment, education and prevention, as well as helping to address some of the underlying social drivers of problematic use. 

6. A State Agency to Tax and Regulate the marijuana industry, including marijuana purity and potency.

We agree. It is vital that a state agency, or agencies should regaulate all relavant aspects of production and availability. On purity and potency specifically, from Blueprint (page 113):

"Controls could manage the strength/potency of herbal or resin form cannabis, based on relative proportions of active ingredients (that is, ratio of THC [tetrahydrocannabinol] to CBD [cannabidiol]). Maximum and minimum % content could be specified." 

7. Licensed Growers, Distributors, and Retail Sellers Marijuana sold only in licensed retail stores where no other products are sold.

We agree on strict licensing including of retail outlets, though we also envisage Dutch-style licensed "coffee-shops", that could sell food and non-alcoholic drinks too. From Blueprint:

"The basic models would involve various forms of licensed sales, for consumption on premises or for take-out—these would be conditional on controls outlined below, and would not preclude a potential pharmacy sales model.

A regulated market model (see: page 27) might be an appropriate incremental step as legal supply infrastructure and outlets were established. A key task of any regulatory body would be to manage supply so as to prevent the emergence of branded products and limit all forms of profit driven marketing and promotions."

Blueprint also considers how the inevitable small scale growing for personal use could be catered for in a new legal system (p. 214).

8. No Drugged Driving - A ban on driving with marijuana in the systems of drivers or passengers.

We agree that no one should drive with levels of any drug in their system sufficient to impair their performance - and, to be fair, no one arguing for reform has ever said different. Just as with alcohol, the detail of what level that is needs setting in law - there is ongoing debate whether it should be zero (it varies between jurisdictions). Technical issues exist with cannabis as, unlike alcohol, it is detectable in the system long after any impairment is evident. Until these issues are resolved it may be that impairment testing (possibly in support of more conventional drug testing) is the most effective  response. This is a developing field and should be guided by evidence of what is effective at reducing drug impaired driving and its negative consequences.

We disagree with a ban on passengers with drugs in their system, and even the NFIA gives no justification for including them. It might prove impossible to enforce - would the resposibility for drug free passengers be with the driver? What about buses, trains, planes?

9. No Drugged Employees or Students - A ban on people coming to work or school with marijuana in their systems.

No one should be going to work or school intoxicated so that it impairs their performance, particularly for safety critical responsibilities, but this should be dealt with consistently for all substances (including alcohol) through existing practices, contracts and agreements. We would caution against over-intrusive testing regimes that do not focus on impairment – which have generally shown to be unjustified and ineffective.

10. Smoke-Free Laws Apply - No marijuana use where tobacco smoking is banned.

We agree (see page 61) - although there should usefully be a caveat, detailing different rules for non-smoked cannabis.

2 More Provisions to protect children if Congress legalizes marijuana.

11. Marijuana Controlled by FDA. Marijuana placed under the control of the U.S. Food and Drug Administration, like tobacco is now.

We agree. This seems sensible - unless a separate agency is established as suggested in point 6 above.

12. A Surgeon General’s Report on the impact of legal marijuana.

We agree, but as part of a much broader ongoing evidence-based evaluative process of all aspects of the approach taken to drugs at the national and international levels.


So...


Essentially we agree in whole or part with the majority of the regulatory measures the NFIA is suggesting, many of which could have been taken from Transform's “Blueprint for Regulation”. Whether they have been reading it or not doesn't matter, indeed if they are reaching the same conclusions without reading it that is probably a good sign that when people think sensibly about regulating drugs they will tend to come to similar conclusions. And there are plenty of sensible people advising this campaign initiative.

We look forward to genuinely trying to find a common platform that all groups and individuals interested in regulating drugs properly can support in any post-prohibition world.