Mistakes are inevitable. Repeating mistakes is unnecessary. Commercial legalization of alcohol was a mistake; let’s try something different for cannabis.
John Buntin at Governing looks to the development of alcohol policy after Prohibition for cautionary lessons about the future of the legal commercial cannabis industry, and some alternatives to that future. It’s the kind of solid, thoughtful reporting that is Buntin’s hallmark, and well worth a read.
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.”
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.
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.
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 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.
Sometimes b.s. science in support of drug policy advocacy reflects the choices of the scientists. Sometimes it reflects the choices of the advocates.
I got a note from a friend about a report that frequent cannabis users consume less alcohol. Of course, it would be fabulous news if cannabis use actually substituted for heavy drinking; to my mind, that would make the case for cannabis legalization a near lay-down, and the case for high taxes and tight restrictions rather dubious.
The note was based on a NORML press release with a very encouraging headine:
Frequent Cannabis Consumers Less Likely To Engage In Problematic Alcohol Use
And the lead paragraph was consistent with the headline: “Those who report consuming cannabis two or three times per week are less likely to engage in at risk drinking behavior, according to data published online in The American Journal of Addictions.”
So I rushed to read the actual paper. Yes indeed: frequent cannabis users were less likely to engage in problem drinking compared to occasional cannabis users. Ooops!
Here’s the summary by the sciencists, right at the top of their paper:
Cannabis users were more likely to report hazardous alcohol use, use of other illicit drugs, and unauthorized use of prescription drugs than were non-users. Within the group of active cannabis users, frequent cannabis use, compared to occasional use, was associated with the use of other illicit drugs and negatively associated with hazardous alcohol use.
In fact, if you compare heavy cannabis users (here defined as 2-3x/week or more with non-users, they’re slightly more likely to engage in problem drinking. It’s just that they’re better off in that regard than occasional users.
So the accurate summary of the paper would be: cannabis smoking in Sweden is associated with problem drinking, but less so among frequent smokers than among occasional smokers.
See how it’s done? Simply by omitting the crucial qualfier, you can convert a finding that’s unhelpful to your cause to a finding that’s extremely helpful. Now kids, these are trained PR professionals; don’t try this at home.
Pot-smoking in Sweden is fairly rare; only 2.7% of the weighted sample reported any use. (The comparable figure in the U.S. would be more like 15%.) Of those, more than 90% were categorized as occasional users: remember, that’s the group with more alcohol abuse. Only 9.7% (weighted) were in the frequent-user group. So the possible protective effect applies to something less than half a percent of the population. At that rate, cannabis isn’t likley to contribute much to alcohol-abuse prevention, even if there’s a real effect, which of course we don’t know. The study is purely correlational, leaving the causal relationships utterly undefined. A response rate of under 30% further complicates interpretation. Nor do we know what happens over time; what’s the effect of heavy cannabis use at time T on problem drinking at T + 1, T + 2, …?
Even so, the negative correlation between cannabis frequency and heavy drinking isn’t what I would have expected; this is a finding the calls for follow-up research.
But the main thing I learned is not to trust NORML press releases.
Several people have noticed that my usually sunny disposition turns a bit more stormy when I participate in drug-policy debates. Is it any wonder? I think I deserve some credit for not having actually strangled anyone.
Update The author of the press release replies:
Yes, you are correct. This is what the paper said. I believed this point was made clear in the press release here:
“Researchers reported that frequent cannabis consumers (defined as having used cannabis two or three times per week) were less likely to engage in hazardous drinking practices compared to infrequent users (those who reported having consumed cannabis fewer than four times per month).”
They concluded: “Among cannabis users, frequent cannabis use is associated with a higher prevalence of other illicit drug use and a lower prevalence of hazardous alcohol use when compared to occasional cannabis use.”
The conclusion that the heavier cannabis users reported less incidences of hazardous drinking compared to ‘infrequent users’/’occasional users’ is made clear in the third and fourth paragraph using those exact terms. Your summary implies I never made this point clear at all and that is simply untrue.
In hindsight I agree that I arguably should have also made this point more clear in the lede, but I did make it explicitly clear the third paragraph and also quoted the paper’s authors in the fourth graph. The summary of the paper itself was only four paragraphs. (The fifth graph refers to a separate paper.) I would hardly call this a ‘fast one.’
It seems to me that failing to mention that both cannabis users over all, and even the heavy users, were more involved with at-risk drinking than non-users was a serious problem. But your mileage may vary.
The cover package in the current issue of Washington Monthly includes articles on cannabis legalization by Jonathan Caulkins, Jonathan Rauch, and me, under the heading “Saving Marijuana Legalization.” Mine has the wonderful title (which I think Paul Glastris gets credit for) “How Not to Make a Hash of Marijuana Legalization.”
All three pieces consider how to legalize cannabis rather than whether to legalize it. Caulkins and I both distrust the trend toward a commercial system on the alcohol model, and I’m also unhappy both about a pure states’-rights approach and about legislation by initiative. I also float the idea of user-set monthly purchase quotas, a “nudge” strategy that I claim might do some good and couldn’t hurt.
Michael Hilzik gives the whole thing a very nice write-up on the LA Times business page.
Footnote Depressingly, none of the LA Times commmenters makes a point that is either original or cogent. It’s like hearing from the Romneybots in the fall of 2012.
My dad will never stop smoking pot. Sometimes I wonder about the man he might have been, and the lives we all might have had, if he’d never started.
As I keep saying: the evils of prohibition do not disprove the evils of substance abuse. In the case of cannabis, it’s probable that we could get rid of the former without greatly increasing the latter. But it’s not automatic. And denying that cannabis abuse is a real problem doesn’t help.
Note how the mythology of “addiction” cultivated by the “drug-prevention” effort and the drug-treatment industry interferes with understanding. Most drug abuse is very unlike the horrible picture painted in the linked story: it’s relatively transient. And most people who use “addictive” drugs don’t get addicted to them; substance abuse happens to only a minority of users, and only a minority of abusers actually have the “chronic, relapsing disorder” touted as typical. Bad habits around drug-taking are like other bad habits: they lie along a spectrum, and not everyone who uses a drug that turns out to be habit-forming in others encounters a problem.
But if you have the problem, or your brother, or your son, or your mother, it’s a serious problem. And the risk can’t just be wished away. If you support making cannabis available from profit-seeking commercial vendors, heavily marketed, and cheap – which is the path Washington and Colorado are walking down right now – then the predictable result of your preferred policy will be more people with very bad cannabis habits. And there could be fewer such people if cannabis were kept expensive, if marketing were kept to a minimum, and if users were offered modest helps to their self-command, such as user-set periodic purchase quotas, or if we keep the commercial motive out of the business altogether with state stores or by limiting vendor licenses to consumer-owned co-ops and not-for-profit businesses with boards concerned with limiting drug abuse rather than maximizing revenue.
Of course you’re free to oppose all of that. But if you do so, you ought at least to acknowlege the inevitable human cost.
Update Comments closed due to persistent trolling, using multipe IPAs. I may start to follow Keith’s lead. Alterantively, we could go to some sort of registered-commenter system. Sorry, folks, but I suppose if you have a picnic you have to expect some cockroaches.