Cannabis legalization in Oregon: Why Measure 91 is close enough for government work

Ballot initiatives are a terrible way to make policy changes when the technical details matter. Despite the simple-minded sloganeering on both sides, the question of creating a legal cannabis market is about as technical as they come, with equally valid public goals in sharp conflict, many unknowns, a variety of tricky design issues, and some big risks.

But sometimes initiatives are the only way to go, because legislators simply won’t do what a majority of voters want.

Cannabis legalization is that sort of issue, too: legislators are scared of cops and prosecutors, and most cops and prosecutors really hate legalization.

In Oregon, advocates went to the legislature and said, “We can and will put legalization on the ballot unless you handle the issue.” The legislature didn’t move. So the advocates acted on their threat, giving us Measure 91.

What they produced is noticeably less crazy than the measure that failed in 2012: for example, the quotation from the Book of Genesis about “herb bearing seed” is missing.  It seems to reflect a good-faith effort to craft a law that will allow adults to get cannabis, wipe out the illicit market, provide some revenue, and prevent a big increase in use by minors.

But Measure 91 does not reflect a sophisticated understanding of the problems of illicit markets or a nuanced view about substance use disorder. Focusing on the goal of eradicating the illicit cannabis market in Oregon, it doesn’t pay enough attention to the risk that Oregon might become a source of illicit supply to neighboring states. Focusing exclusively on preventing use by minors, it neglects the risk of increasing dependency among adults.

The basic fact about a legal cannabis market is that the product will be remarkably cheap to grow; once competition and industrial-style production have taken effect,  a legal joint would cost (before tax) about what a tea-bag costs, rather than the illegal or medical-dispensary price, which is 100 times as high. And the tax provided for in Measure 91 would add only about 50 cents to the price of a joint: not a high price to pay for two hours or more of being stoned.

Lower prices won’t much change the behavior of adult casual users; even at today’s illegal prices getting stoned is a bargain compared to getting drunk.  But lower prices would matter a lot to frequent users, and most of all to frequent underage users, simply because what they spend on pot represents significant element in their personal budgets: at current prices, the cost of a heavy cannabis habit can exceed $5000 per year.

Of course the claim that barring minors from buying in cannabis stores will keep them from having access to diverted supplies doesn’t pass the giggle test: just consider how easy it is for a minor to get alcohol from an older friend or relative or from the poor heavy drinker hanging around the liquor store, willing to buy a case for a teenager as long as he gets to keep a couple of bottles for himself. Cheap cannabis for grown-ups inevitably means cheap cannabis for kids.

Unless the legislature decided to raise it, the $35-per-ounce tax in Measure 91 would lead, within a couple of years, to prices way below current illicit prices and way below legal prices in Washington State. That in turn would mean big increases in use by minors and in the number of Oregonians with diagnosable cannabis problems. It would also mean substantial diversion of cannabis products legally sold under Oregon’s low taxes to Washington, where taxes are much higher. (Currently the flow goes the other way, with the two biggest-selling legal cannabis stores in Washington being the two closest to Portland.)

It wouldn’t be hard to draft a better-balanced measure than the one to be voted on in two weeks. For example, it might be wiser to limit legal production and sale to co-ops or non-profits, keeping the profit motive out of the business altogether.

But the choice Oregon voters face isn’t between what’s on the ballot and some perfectly designed cannabis policy; it’s between what’s on the ballot and continued prohibition at the state level, until and unless a better initiative can be crafted, put before the voters, and passed into law.

Measure 91 would enact an ordinary law, not a constitutional amendment. If it passes, the legislature will be free to amend it the next day by a simple majority vote; such moves are allowed not only by law but by the conventions of Oregon politics.

So the question facing Oregonians who want adults to be able to buy cannabis legally – without the nonsense of finding a “kush doctor” and faking an ailment – is whether to defeat the proposition and hope that the legislature will act on its own (or that a better-drafted bill will appear on the ballot in 2016) or whether instead to pass the current proposition and hope that the legislature will move to fix what’s wrong with it.

Given the balance of political forces, it seems more reasonable to trust the legislature to rein in a too-lax legalization scheme than to expect it to do what no legislature in the nation has been willing to do yet: pass a full cannabis-legalization law.

It’s not hard to identify the key points that need amendment, within the context set by the initiative: cannabis sold by a set of for-profit enterprises under state regulation. (That leaves aside such interesting ideas as just letting consumers grow their own, or requiring that growers and retailers be not-for-profit co-ops or public-benefit corporations, as well as the alternative of state-monopoly retailing, which has some attractive features but can’t be done while the federal Controlled Substances Act is in place, because the state can’t tell its officials to violate federal law.)

* Recognize preventing adult substance use disorder among the goals of the law.
* Assign some of the regulatory authority to the health department rather than giving it all to the revenue department.
* Give the regulators explicit authority to restrict the quantity of cannabis that can legally be grown. (Ideally, growing rights ought to be auctioned off rather than given away, giving the financial windfall to taxpayers instead of to the lucky few who end up with licenses.) * Increase the proposed taxes, and make them adjustable to keep legal prices at about the current illegal level as production costs fall. In the end, to prevent a big price decrease, the tax would have to be a very large fraction of the current illegal or quasi-medical price of about $10/gram.  Ideally, taxes would be based on the intoxicating power of the product – measured in milligrams of THC, the primary active chemical – rather than on the total weight of the plant material. (We tax whisky more heavily than beer or wine; why shouldn’t cannabis taxation work on the same principle?)
* Require that retail clerks have some serious training in pharmacology and substance use disorder, and make it part of their job to discourage excessive and dangerous consumption patterns, rather than letting their bosses just tell them to sell as much product as they can.
* Make sure there’s enough enforcement against illicit growing and dealing to make the legal market competitive.
* Rein in the medical-marijuana business. Once Oregonians with medical need can buy tested and labeled product at commercial outlets, there’s no need to have an entire parallel distribution system. It makes sense to offer tax exemptions for limited quantities to genuine patients, but the current practice of “patients” buying “medical” supplies for illicit resale has to stop.

There are lots of other good ideas around. (See the forthcoming RAND report on legalization options for Vermont.) But those will do for a start.

Would the legislature pass them all? Probably not. But Oregon’s chances of getting to a temperate cannabis policy will be better if the voters force the legislators to get off the dime.

It’s not an easy choice; as a Californian, I’m glad I don’t have to make one like it (yet). But if I had to vote in Oregon, I’d vote “Yes.”

Legalizing pot carries risks. So does prohibition.

As predicted, the Wall Street Journal refused to correct the Bennett/White op-ed that strongly implied (without quite stating explicitly) that I believe cannabis legalization would sextuple the rate of cannabis dependence to 16.2 million. (My previous whining about that here.) However, the Journal did publish my letter, with only helpful edits and an accurate headline that’s a pretty good haiku-length statement of the case.

Like the original article, the letter is behind a paywall, so – on the off chance that some RBC readers don’t pay tribute to the Murdoch empire – I’ve pasted it in below.

 

Legalizing Pot Carries Risks, but So Does Prohibition

To the Editor:

William Bennett and Robert White (“Legal Pot Is a Public Health Menace,” op-ed, Aug. 14) cite my research as support for their claim that the legalization of cannabis would mean creating 16.2 million “marijuana addicts.”

Not only is the attribution false; the claim it purports to buttress is absurd. I made no such prediction, and the idea that legal cannabis could create more addicts than legal alcohol doesn’t pass the giggle test. It would be astounding if the actual number were one-third as high as Messrs. Bennett and White project

Cannabis legalization on the current alcohol model—low taxes and loose regulations—would indeed risk a large increase in the extent of cannabis abuse. That is why some of us are working hard for high taxes and sensible regulations on cannabis, as well as stronger controls on alcohol, which is after all a much more personally and socially dangerous drug.

Cannabis legalization in any form will create some harm; every drug policy has disadvantages. But against that must be set the enormous harms from cannabis prohibition: $40 billion a year in illicit revenue, some of it going to violent criminal organizations in Mexico; tens of thousands of people in prison; and more than half a million users arrested each year.

Our goal should be to eliminate as much as possible of the damage from prohibition while minimizing the harms that would result from a badly designed legalization.

Mark Kleiman

Los Angeles

16.2 million cannabis addicts? No, of course I didn’t say that. Bill Bennett just made it up.

In his latest anti-cannabis-legalization screed, (behind the Wall Street Journal paywall), written with a former federal prosecutor named Robert White, William Bennett writes:

Mark A.R. Kleiman, a professor of public policy at the  the university of California, Los Angeles, has estimated that legalization can be expected to increase marijuana consumption by four to six times. Today’s 2.7 million marijuana dependents (addicts) would thus expand to as many as 16.2 million with nationwide legalization.

Now, if Bennett wants to make silly predictions, and if Rupert Murdoch wants to publish them, all I can say is, “It’s a free country.” But I think I’m entitled to protest when he attributes that silliness to me. It’s hard to count how many ways that short paragraph is wrong, but the central points are simple:

1. An estimate of the possible change in quantity consumed is not an estimate of the change in the number of dependent users. Consumption can also grow because the amount consumed per dependent user increases.

2. Even most dependent users are not, by any reasonable definition, “addicts.”

3. The large estimated impact on consumption depends the  factor-of-ten price decrease (to about $1-2/gm. for moderately potent product) that would result if cannabis were treated like an ordinary commodity. If taxation or production limits prevent such a drastic decrease, the effect of legalization on consumption would be much smaller.

Continue Reading…

Cannabis legalization: not whether, but how

The New York Times comes out for cannabis legalization.

David Frum is still against it.

Neither deals seriously with the balance of advantage and disadvantage; the Times simply blows off the question of substance use disorder and pretends that passing a law forbidding sales to minors takes care of the problem of increased use by minors, while Frum never mentions the damage done by the $40-billion-per-year illicit market created by cannabis prohibition and proposes nothing that would shrink that market.

And neither the Times editorial board nor David Frum seems interested in the question of how to legalize, as opposed to whether to legalize. The Times doesn’t notice that commercialization is only one approach to legal availability, and arguably not the best; Frum simply dismisses a temperate approach to legalization as politically unworkable, without explaining how to make his kinder, gentler prohibition a political winner.

Alas, I sometimes suspect they’re both right. As a matter of practical politics, our only choices may be a badly-implemented prohibition or a badly-implemented legalization.  (If so, I’m inclined to try the Devil I don’t know.)  So far, my attempts to put political and organizational muscle behind the idea of smart legalization have merely illustrated the wisdom of Ralph Yarborough’s maxim, “They ain’t nuthin’ in the middle of the road but yaller lines and dead armadillas.”  I don’t find life as political roadkill especially uncomfortable, but it does get frustrating. It’s not just that continued prohibition and commercial legalization are both bad ideas; it’s that the arguments for those two bad ideas leave no media space, or mindspace, for discussion of the good ideas that might lie between them.

Footnote Ann Althouse does a good demolition job on the Times editorial, though to the best of my knowledge there’s no evidence of intoxication or health damage from second-hand cannabis smoke or vapor.

HRC talks to CNN about MJ

A CNN interviewer asked Hillary Clinton about cannabis policy.

On medical use, she replied that we need more research, including research about drug interactions, but in the meantime people with serious medical conditions where there’s “anecdotal evidence” of efficacy ought to have access.

On non-medical (“recreational”) use, she said that the states are the laboratories of democracy, that two states are trying legalization, and that we should wait and see how that goes.

Perfectly reasonable answers, as far as they went, and perhaps a little bit more pro-cannabis than I might have expected from such a cautious candidate.

But they cried out for follow-up questions:

1. As President, what would you do to promote medical research on cannabis and cannabinoids? Would you tear down the barriers to research now created by federal policy: in particular, the UMiss monopoly on cannabis for research purposes and the requirement that every study receive a “grant” of cannabis from a special committee within HHS?

2. While the states are doing their experiments, to what extent should the federal government help, or at least get out of the way? Colorado and Washington are now issuing state licenses to commit federal felonies. Current banking regulations make it difficult-to-impossible for cannabis stores to have bank accounts or to take credit cards, creating a huge all-cash business that is therefore an attractive robbery target. A state that wanted to experiment with state-monopoly retailing (arguably the best approach) would currently be barred from doing so by federal law. As President, would you propose changes in the Controlled Substances Act to make state-level experiments legal?

Instead, of course, the CNN interviewer asked her whether she intended to inhale. Arrrgggghhhhhh!

How long is it going to take for the press corps to stop giggling about cannabis policy and start reporting on it?

A dispensary operator speaks out on “medical marijuana” and Americans for Safe Access

My post about Americans for Safe Access drew the expected outraged response from its target, but it also drew an unexpected note from someone I hadn’t met before, Muraco Kyashna-tocha, who runs the Green Buddha Patient Co-Op in Seattle. With her permission, I’m posting it here.

****
I am the anthropologist who runs the state of Washington’s oldest medical cannabis collective. I loved your wonderful blog post on ASA. Actually, I have really enjoyed all your writings for the last year plus. You hit the nail on the head!

I made sure to pass your recent blog to Senator Jeanne Kohl-Welles who I expect to write a bill for submission early next year which will regulate medical cannabis and align the two systems into the I502 system. I have been a strong supporter of this, as well as an open strong supporter of I502.

Odd position, you might think, for a dispensary, but we’ve been trying to hold the line and deal with only authentic patients, the ones the media sees – the ones with cancer, MS etc. They aren’t easy to find among all the riff-raff.  Half my clients are cancer patients who have found the “medical marijuana” explosion frightening, and they don’t tend to find themselves nor the products they really need in the current medical cannabis scene.Sincere patients are few and far between.

ASA has been a nightmare for my state. They rally “patients” – collecting their funds from those selling the medicine to those patients. Early this year they worked against all reasonable attempts to get mmj regulated. They spoke constantly to the media about “safe access” which is a euphemism and rallying cry for “Save the dispensaries.”

Dispensaries do not need saving in Washington State (as I have said frequently at hearings in Olympia) – even as patients’ rights do need securing – affirmative defense, arrest protection, small home grow allowance, etc.

I see ASA willing to throw out patients’ rights in order to secure legal dispensaries for the real folks they speak for. I feel like I bang my head against the wall all the time, so I loved this line:

accuses ASA of “relentlessly talk(ing) about the interests of patients while single-mindedly serving the interests of the sellers.

You are correct – this is what ASA does. Green Buddha looks forward to closing very shortly. (Gawd, please will the stores open and can we get serious about licensing producers? We’re at 50 as of last Tuesday)

Green Buddha is the last of the original collectives. We have no paid employees. We’re all volunteer. Average age of our patients is my age, 56.

I view ASA as one of the major impediments to my state rewriting its mmj laws and regulating the system – align it with I502. Stay the course and keep pounding on them.

 

How is legalized pot doing in Colorado?

Vox tries to cut through the clutter of conflicting claims about the outcomes, so far, of commrcial cannabis availability in Colorado.

So far, the only thing I see that counts as a downside surprise is the problem of misuse of edibles: little children getting into Mommy’s cannabis-laced candies and winding up in the emergency room, older kids bringing those same candies to school, and grown-ups (plus, of course, aging juveniles like Maureen Dowd) getting way, way too stoned and experiencing a very unpleasant few hours.

The problem wasn’t unexpected, in that it’s obvious that sweets are attractive to children and it’s been known for years that the “overdose” risk is higher when the latency between ingestion and feeling the effects is very long. The surprise is that edibles seem to be grabbing a very large market share, and that – for reasons unknown to me – the promised rules about dosage labeling (which could make edibles actually safer than inhaled versions once consumers learn to manage their intoxication levels) weren’t in place when the stores opened.

There has been one undoubted disaster: Levy Thomba, a 19-year-old Congolese student at a college in Wyoming, came to Denver on spring break, bought a high-dose cookie, and (apparently despite a warning issued by the retail clerk) ate the whole thing. He then jumped or fell from a balcony to his death.

That ought to – but of course won’t – silence the pot advocates who argue that “No one has ever died from taking cannabis.” Accidents are a statistically predictable consequence of any sort of intoxication, and inevitably some of those accidents will be fatal. So one identified death doesn’t count as a surprise.

In response to a reporter’s query, I looked up the comparable statistics for our primary legal intoxicant, alcohol. CDCR reports 7500 deaths per year due to alcohol-related falls (out of a total of almost 50,000 acute alcohol deaths per year, in addition to another 40,000 alcohol-related deaths from chronic disease).

Now, Colorado has 1.6% of the population of the U.S. So, assuming the rate of alcohol-induced fatal falls in Colorado is typical, in the five months since Colorado legalized commercial cannabis sales something like .016 x 7500 x 5/12 = 50 Coloradans have died from falling while drunk. So if Levy Thomba is the worst the advocates of legal availability have to show, I’d advise them to pack up their traps and go home.

On the other hand, very few of the likely bad results from cannabis legalization – all of which come down to an increasing number of adolescent and adult problem users – were ever likely to show up immediately after commercial availability began, especially in a state such as Colorado which has had virtual legalization under the “medical marijuana” mask for years. The problems to look out for will show up – if they show up – slowly, not quickly. We’ll get some indications within the first couple of years on the key question whether cannabis substitutes for alcohol or instead complements it, but even that result might not be the same in the long run as it is in the short run.

So while I laugh at the drug warriors’ desperate attempts to portray Colorado as a disaster area, the pot advocates’ blithe assurances that everything is fine remind me of the guy who jumped off the observation deck of Empire State Building. As he passed the 42nd floor on his way down, someone yelled out to him, “How’s it going?” to which he replied, “So far, so good.”

How bad is stoned driving, and what should we do about it?

Dishonest advocacy aside, what are the actual risks of stoned driving? The answer, from what seems to be a well-done case-control study, is that driving stoned is hazardous, but much less hazardous than driving drunk. (A relative risk of 1.83 – meaning that driving a mile stoned is about as risky as driving two miles sober – strongly suggests that cannabis-impaired driving is a problem, but also that it isn’t much of a problem; the relative-risk number for alcohol is over 13.) On the other hand, the same study shows that adding cannabis or other drugs to alcohol substantially worsens the odds: alcohol-and-something-else has a relative risk of 23.

Given those numbers, and the technical difficulty of identifying cannabis-impaired driving (because impairment doesn’t track cannabinoid levels in blood nearly as well as it tracks alcohol levels) I’d propose the following rule: anyone who tests positive for cannabis on a mouth swab (which detects use within the past few hours) should be considered guilty of impaired driving if that person’s BAC is detectably different from zero. All that means is that, if you’ve been toking and drinking, you need to wait as many hours as you’ve had drinks before getting behind the wheel.

Of course, if I were advising someone personally, I’d be much more cautious: driving within six hours of using cannabis is pretty damned stupid. But the same is true of driving after a sleepless night. The question isn’t what’s imprudent; the question is what’s hazardous enough to make a serious criminal offense. So far, the numbers I see about stoned driving (in the absence of alcohol) don’t bring it across that very high threshold.

Given the long latency of THC, the “zero-tolerance” rules now being passed in some states, which making driving with any detectable cannabis on board drugged driving per se, without evidence of actual impairment, are simply a backdoor way of recriminalizing cannabis use.

Footnote A case-control study – comparing a group of drivers responsible for accidents with a random sample of all drivers – is the only way to figure out what’s really going on. The observation that, as cannabis use spreads, more crash-responsible drivers have cannabis on board tells you precisely nothing. After all, if consumption of blintzes were to increase, more responsible drivers would test positive for ricotta. You neeed a denominator, not just a numerator.

Washington State Court of Appeals bans medical marijuana stores

I completely failed to see this one coming.

A brief history lesson:

Washington State has had a medical marijuana law since 1998. In 2011, the legislature passed a bill allowing the creation of “collective gardens” (aka stores) to grow cannabis for patients registered with the state, and regulating those outlets in various ways: all members of the collectives would have had to register with the state. The governor used her line-item veto to take out major provisions of that bill, including the part that would have created the patient registry.

Until now, the prevailing view has been that the permission to open stores was valid law even though the regulations designed to control them had been zapped, leaving Washington with a booming, and virtually unregulated and untaxed, medical cannabis industry; as everyone says, Seattle has more “medical outlets” than it does Starbucks locations. Some players in that industry were among the strongest opponents of the I-502 initiative that legalized non-medical sales.

Once I-502 had passed, its proponents and administrators started to worry about how a regulated and taxed commercial market could compete with a wide-open, but untaxed and unregulated, quasi-medical system. There were efforts in the legislature this year to rein in the “gardens,” but the industry (speaking, of course, in the name of “the patients”) and a partisan split in the legislature made it impossible to pass anything. Battle was expected to be joined again in January, with the threat of federal intervention lurking in the background.

In the meantime, the town of Kent had passed a local ordinance banning medical outlets. Various industry players sued, citing what was left of the 2011 law. But now the Washington State Court of Appeals (the second-tier court) has ruled that the governor’s partial veto makes all the collective gardens illegal, because a legal collective garden must serve registered patients and there is no patient registry. Therefore, Kent is at liberty to ban what was – according to the court – an illegal activity in the first place. All that’s left of the medical marijuana law is permission for individuals with medical recommendations to grow their own: if charged with a violation of state law for production or possession (but not, apparently, sale), a medical recommendation creates an affirmative defense.

Presumably most of the localities that have collective gardens, including Seattle, will continue to let them operate, especially since the commercial outlets won’t even start to open until sometime around the end of June or early July.

There may be an additional layer of complexity: the Liquor Board planned to allow newly-licensed growers to bring some of their existing cannabis plants into the legal system, since otherwise there would be nothing for the new stores to sell. If newly-licensed growers have to grow new product from seed starting late this spring, the shelves will be bare until fall at the earliest.  Whether the new ruling puts a monkey-wrench in that machinery remains to be seen, as does the effect of the ruling on the bargaining over a new law next year. (Or will the governor call the legislature into special session to give it another try this year?)

Never a dull moment.

 

Cannabis, Bill Bennett, and the technique of selective reading

A friend emails, “Bill Bennett read your book … or, at least, every other page of it.”

Well, yes. Bennett and his sidekick Christopher Beach, in using the Caulkins et al. Marijuana Legalization book to support their argument against legalization, illustrate the point made here yesterday about the contrast between analysis and mere advocacy. To an analyst, every course of action* has advantages and disadvantages, which ought to be carefully weighed against the advantages and disadvantages of its alternatives. To a mere advocate, the course of action he prefers has only benefits, while the courses of action he deplores have only costs.

Since Beach and Bennett chose to base their argument on our book, (albeit without providing a link to it), it’s easy to see their principles of selection in action. They start out by mis-stating the book’s viewpoint and purpose:

In their book Marijuana Legalization: What Everyone Needs to Know, Mark Kleiman, Jonathan Caulkins, Angela Hawken, and Beau Kilmer—all of whom support the legalization of marijuana in some fashion—report …

This account suggests that the authors of the Weekly Standard essay never quite finished the book. While the first fifteen chapters, in Q&A format, are entirely collective products (I suppose in this context I can’t say “joint products”), the final chapter consists of four individually-authored essays. Of the four authors, only Angela Hawken favors legalization on the alcohol model. I’m clearly for legalization, but just as clearly against commercialization, concluding “So my first choice—not what I think will happen, but what I would like to see happen—is permission for production and use through small not-for-profit cooperatives, with a ban on commerce.”

Beau Kilmer points out how uncertain the whole proposition is, and devotes his essay to arguing that, if legalization is to be tried, it ought to be tried in an experimental mood, with, for example, sunset clauses. He adds:

Given the dearth of evidence we have about legalizing any of these activities, I am not convinced that jumping from one end of the continuum (prohibition) to the other (commercial production with advertising) is a good idea. Indeed, given the concerns about marijuana companies working hard to promote use, nurture heavy users, and keep taxes low, implementing the most extreme alternative to prohibition could be a really bad idea.

And Jonathan Caulkins – in fact the lead author of the book, though  Beach and Bennett list my name first – comes down more or less in the Beach-and-Bennett camp, starting his essay with  ”I would vote against legalizing marijuana … ” (though he lists a grow-your-own approach as a possible “middle ground”). Jon concludes:

About half of all days of marijuana use come from people who self-report enough use-related problems to meet criteria for substance abuse or dependence with respect to marijuana or another substance. Does the happiness a controlled user derives from using marijuana on a typical day offset the unhappiness of someone else spending a day harmed by and/or struggling to control problem drug use? In my opinion, the answer is no. In a free society there are plenty of other ways to have fun without insisting on a right to use something that becomes a stumbling block for others.

Why should Beach and Bennett want their readers to believe that the authors of Marijuana Legalization are all legalization advocates? Continue Reading…