Beau Kilmer on restricting cannabis marketing

No, “commercial free speech” doesn’t make cannabis marketing restrictions impossible.

Beau Kilmer has a very sharp short op-ed in the NYT arguing for the use of federal muscle to limit aggressive cannabis marketing and child-friendly packaging in Colorado and Washington. Going after sellers of cannabis candy seems like clearly good idea, given the risk of accidental consumption by little children. Would it really be too great an imposition to insist that cannabis edibles and potables be unsweetened and not look like confections? Since the Supreme Court’s “commercial free speech” doctrine is based on making truthful claims about lawful products, and since cannabis remains an unlawful product at the federal level, I don’t see the basis for claiming that the legalizing states and the federal government have to permit the same sort of unscrupulous advertising for cannabis as they do for alcohol.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

27 thoughts on “Beau Kilmer on restricting cannabis marketing”

  1. I could get behind this, if I were somehow persuaded that it couldn’t lead to police officers kicking down Kathryn Johnston’s door, shooting her to death, and then pressuring some poor schmuck into claiming that he bought cannabis candy there.

    Given the record of the drug warriors so far, it’s reasonable and fair to assume that any such law, however benign, will be abused in any way possible to feed the asset-forfeiture-and-conviction-record mania that’s running wild in the justice system right now.

    In a different country, with a different history, this would seem like a better idea. Here and now, it just feels like a desperate attempt by drug warriors to hang on to some shred of authority they can abuse.

    1. 1. Beau Kilmer is hardly a “drug warrior.”
      2. The actual drug warriors in California strongly (and successfully) resisted regulation of the medical marijuana business, because they like the current disreputable “wild West” marketplace as a means of discrediting marijuana legalization in general.
      3. No program of legalization will abolish regulation entirely. Sales of cannabis to minors remain illegal in Colorado and Washington, just as sales of alcohol and tobacco now are. As far as I can see, there aren’t many dynamic-entry raids aimed at alcohol sales to minors.

      1. 1. You’re right. I erred there in suggesting that these were Dr. Kilmer’s motives.

        I don’t think you or Dr. Kilmer are drug warriors. I get that you’re coming at this problem with all the good will in the world, and genuinely open minds, and you’re doing important work.

        But I think you’re also public policy guys, and so you like making public policy. Your honest, important work can lend aid and comfort to drug warriors looking to hang on. Dr. Kilmer isn’t a drug warrior, but if I were a drug warrior I’d be cheering him on.

        2. And a fat lot of good it did them.

        3. That’s true. Is there a good reason to suppose that LE would show similar restraint in this case? I’d expect there’s a lot of inertia behind the current prohibition regime, and that bitter-enders in LE would continue to use extreme violence to exercise what remains of their diminished authority. But I’ll admit that I’ve got no hard data to back up that suspicion, nor the public policy chops to produce any.

        1. Your honest, important work can lend aid and comfort to drug warriors looking to hang on. Dr. Kilmer isn’t a drug warrior, but if I were a drug warrior I’d be cheering him on.

          This Tea Party-style sentiment about “fellow travelers” is most of what’s wrong with drug policy discourse. If someone advances sensible public policy or put facts in the public square, then you oppose it because your chosen enemies are allegedly lurking in the shadows and smiling their evil grins. Imagine the horror if Kilmer and Kleiman continue their evil work: Diverse people in a democratic society might actually agree on certain facts and find solutions together. The next time you tell yourself that the “drug warriors” are the only reason we have bad drug policies, get out a shiny piece of glass and take a hard look.

          1. I’m all for working with drug warriors when I think they get an issue right and are willing to work outside a prohibitionist model.

            However, that second one is the big catch. The big-time refutation of your thoughts on this occurs in the area of abortion. In theory, everyone should be in favor of reducing the unplanned pregnancy rate so that we have less abortions.

            But in practice, the pro-life movement is tied to impulses of moral condemnation. They don’t just want abortion to be rarer; they want it to be seen as wrong (and want a bunch of sexual conduct to be seen as wrong as well), and given a choice between a legal regime that would keep it legal but make it less common though individual choices, and one that would make it illegal and stigmatize sex they don’t like, they would prefer the latter.

            And my experience is that a lot of drug warriors are the same way. They are morally opposed to certain forms of intoxication. And that makes it difficult to work with them in a couple of ways– (1) some of them simply don’t want to consider a status quo where people have the right to engage in immoral conduct but we try to reduce the number of people who do it within that moral framework; and (2) some of them may not, in theory, be opposed to (1) but skew the evidence and misstate the facts to make it sound like non-prohibitionist attempts to reduce usage will never work and prohibitionist policies are more effective than they are.

            And there’s also a disagreement on priors with respect to at least some of the substances. On marijuana, a lot of the advocates of legalization basically don’t think the stuff is harmful in any particularly important or relevant way. That’s just not a gap that’s ever going to be bridged. (Again, the sex comparison is helpful– a lot of social conservatives think that various kinds of sex are harmful that social liberals not only think are not so harmful, but actually feel to be beneficial. With that sort of disagreement over priors, you are never going to get anywhere on consensus.)

            But despite all those caveats and conditions, when drug warriors make constructive proposals that do not appear to be Trojan horses, yes, pro-legalization types should attempt to find common ground where possible.

  2. Kilmer says “not even the Netherlands has gone this far,” but to me it seems like the situation in CO and WA are more like the Netherlands situation than unlike it.

    In the Netherlands, sales of cannabis are illegal but tolerated. If the authorities want to shut somebody down, they can do so. So they set some guidelines, and if somebody steps outside them, there’s no recourse to due process of law or anything like that. In the document that Kilmer helpfully linked to, the Feds have laid out their own guidelines which resemble what the Dutch authorities have.

    So, in CO and WA, the Feds can swoop down if some seller isn’t doing things they way they want them to, and threaten prosecution under Federal law.

    I’m not sure how it’s going to play out, but the parallels with the Dutch system are hard to miss.

    1. The difference is that the feds currently plan to tolerate even large-scale production in CO and WA. The Dutch authorities aggressively pursue the growers who supply the coffeeshops. As a result, coffeeshop pot costs about the same as illicit pot: 7 Euro (about $10) for a grame of high-grade. Even under the “medical” cover, you can get high-grade for half of that in Colorado, and I’m predicting $3/gm. at retail in a year or two, with the concentrates at a discount on a THC-adjusted basis. That’s a new world.

      1. @rachelrachel: I think California comes closest the Dutch model. No arrests for MJ possession, generally unregulated dispensaries provide legal supply in designated outlets, but large scale production remains illegal.

      2. I hope this doesn’t count as a rant, but I’m going to continue to predict gloom followed by doom on the ‘currently plan to tolerate’ front. Yes, they plan to tolerate until they don’t. Are sellers going to set up on state lines, like the casinos along the Nevada state lines? All you’d need then is a new administration more sympathetic to complaints from Boise than half baked assurances from Olympia.

        Our legalization experiment here was almost completely undone when public (ie non-smoker) support evaporated mostly because of marketing excesses. And the feds gleefully jumped in to knock it down. In 2011.

      3. But how much volume does a casual user go through? Surely not enough where this price point makes a difference.
        Perhaps I underestimate the use of a high volume user, but it seems that 2 grams a day at the Euro rates (for high grade) is about it – and that’s only $20. Drinking still seems to be far costlier.

  3. “Would it really be too great an imposition to insist that cannabis edibles and potables be unsweetened and not look like confections?”

    I don’t see any great harm in regulation as far as looks and packaging are concerned, but put bluntly: marijuana tastes terrible. There’s a reason almost all cannabis edibles are sweets of some form or another, although some devotees can gain a taste for it, it’s the only way to make it palatable. Given the health sub-incentives of edible consumption over smoking, an “unsweetened” limitation seems a bit too much.

    1. So how about selling unsweetened edibles and letting users buy their own honey or chocolate icing?

      1. Doesn’t work. Putting stuff on the outside doesn’t get you decent flavor for the stuff on the inside. In the case of the archetypal cannabis-laced food, you can’t even make a brownie without sugar, because it’s necessary to the structure of the final product. (Unless you mix in some really serious industrial stabilizers, and even then the result is inferior.)

        But we’ve pretty much been through this back-and-forth with alcohol, with mixed results.

      2. Yeah, that would be ineffectual; sort of like putting honey around a wad of coffee grounds. It might make it slightly more edible, but not palatable in the sense that people would buy it. I would also argue that sweetening doesn’t pose the inherent dangers Kleiman thinks it does, since the demographic we’re worried about diverting to is mostly adolescents, not outright children (who would be adequately protected by packaging restrictions on cartoonish figures, color schemes, and parodies of well-known brands).

        Given the relative health benefits of precision dosing and lack of carcinogens in edible consumption compared to smoking, I think we should be wary of over-regulation in that end of the market. This seems like the sort of thing where we should start with the visual aspect and then see if the empirical evidence necessitates further regulation of the taste aspect.

      3. Are you opposed to menthol cigarettes? Wine coolers and hard lemonade?

        I do sympathize with your point generally. I don’t want to see Joe Camel advertising pot (although I’d prefer he advertise pot rather than tobacco!), and I suspect it’s possible to write regulations, consistent with the First Amendment, that put some controls on overt appeals to children.

        But trying to make sure marijuana can’t be delivered in a form that tastes good is another issue entirely.

  4. Sure, limit items appealing to children, such as fruit flavored cannabis drinks and candy.
    However, regulatory capture is here.
    HB 2114 – Concerning the establishment of a dedicated local jurisdiction marijuana fund and the distribution of a specified percentage of marijuana excise tax revenues to local jurisdictions.

    Share the revenue with local jurisdictions, if they play ball and allow marijuana, which I believe the Association of Washington Cities has been pushing for. Alcohol and marijuana all rolled into one big fattie.
    Unfortunately, hope is the only thing left in the jar.

  5. Enough ridiculousness about ‘protecting the children’ from adult products by making them simply unpalatable. Grownups want to have fun. THAT is why they are purchasing legal cannabis.
    This is simply reminiscent of legislators who want to require that all medical cannabis be distributed in the form of a suppository.
    Should all liquor be sold as Everclear with varying levels of water added?
    Is this a problem of proportions that needs to be met by ruining the experience of every person who wants to enjoy cannabis?
    “Smoking is bad. Dabs are bad. Now edibles and sweets are bad”
    Are there incidents of children accessing edibles…rarely, but yes.
    Are there more pressing dangers for children that aren’t being addressed…you betcha.

    1. Well to be fair – medical marijuana is supposed to be for medicinal purposes, while alcohol isn’t – not a good analogy.

      1. So medicine works better when it’s unpalatable? or is that just what our culture and FDA have led us to?

      2. Just a spoonful of sugar makes the medicine go down….

        I think the useful distinction here is between overt appeals to children, like Joe Camel, and anything that could possibly make an intoxicant taste better.

        1. Agreed. I believe there is a lot you can do with packaging to not appeal or attract children. However, I don’t see the legitimacy of forcing companies to provide unpalatable products.
          I think we all believe children should be safe, but there’s not a guardrail around the Grand Canyon and every year some idiot falls in. We can’t protect everybody.

      3. @TomA: I see nothing wrong with the analogy. Alcohol was legal “for medicinal purposes” during Prohibition.

    2. Are there more pressing dangers for children that aren’t being addressed…you betcha.

      Exactly, WS. If we really want to ban something “for the children”, banning backyard swimming pools would be MUCH more effective in terms of protecting children and saving lives. While I agree with the concept that we should take measures to protect toddlers from accidentally ingesting any drug, I think some sort of perspective is in order when we discuss how to do that.

  6. Mark: YES, it would be too much to ask that cannabis edibles be unsweetened. I bake really excellent magic cookies, if I do say so myself: oatmeal, chocolate chip, and mj being among the ingredients. I would love to check out other similar recipes at a (legal) pot shop, and in particular get ideas from professional bakers who have broader range than mine.

    We allow sweet alcoholic drinks – wine coolers, Mike’s Hard, etc., and most people are OK with assuming parents should just teach their kids not to touch them, even when kept in the fridge right next to the Kool-Aid. It is not clear to me why cannabis edibles should be treated differently.

  7. I said it repeatedly when BOTEC was doing the Washington work, and I’ll say it again. Extracts are a fine idea, and if adults want to ingest cannabis in food or beverages, they should be able to buy them to make their own confections. Allowing the sale of cannabis-infused food is a bad idea. No matter how you spin the argument, putting a drug into a food is (pardon the pun) a recipe for accidental ingestion. Drugs should not be disguised as food. There are plenty of people who have difficulty taking pills and may choose to put the pill into soft food, but that doesn’t mean Pfizer should market blood pressure medication infused into pudding cups. It’s not just kids who might get into them. An adult who sees a cookie in a friend’s kitchen is hardly likely to yell, “Hey, Jim, is this an Oreo or a psychoactive drug?” It’s like putting vodka in a water cooler. No one would think to ask. Salty crackers, cookies, brownies and other appealing snacks– these are familiar items and no one would think to ask before eating one– or two, or . . . oh damn, I ate the whole bag. Now imagine that the friend is about to go off to read slides in the pathology lab, or test helicopter parts.

    Children will forage for sweets. Children are sneaky. Children lie to their parents about whether they have eaten candy. There is no hiding place used by a parent that children will not find. A hidden sweet has an additional allure. Really, is there anyone out there who does not recall the thrilling moment of finding mom’s stash of chocolate? And then there was that cunning calculus about the unopened package. Might she not notice? Is there a sibling at whom one could point the accusing finger? It must have been tough on only children– who could you blame, the dog? And child-proof packaging? Really! A friend’s six year old showed me how to use a special cutting tool for safely opening those awful clam shell packages.

    Mark once said that the alcohol industry brilliantly disguises the fact that users are taking drugs. No, they’re enjoying a refreshing drink on a hot day, or a hot toddy on a cold night. Or experiencing the zest of Sangria. I amused myself imagining dealers hawking lemon-flavored cocaine for summer afternoons and cinnamon-spiced heroin for the holidays. Proponents of edible cannabis products have won the fight, at least in Washington. They should look forward to having a properly labeled vial of extract safely stowed away, and not lobby for the ability to buy Hostess Kushies.

    1. I said it repeatedly when BOTEC was doing the Washington work, and I’ll say it again. Extracts are a fine idea, and if adults want to ingest cannabis in food or beverages, they should be able to buy them to make their own confections. Allowing the sale of cannabis-infused food is a bad idea. No matter how you spin the argument, putting a drug into a food is (pardon the pun) a recipe for accidental ingestion.

      What about all the stimulants packaged as sports and soft drinks? Somehow Red Bull hasn’t presaged the end of civilization.

      I think this discussion shows the extent to which moral panic really drives even the more rational people within the drug war discussion. There are all sorts of analogues to all the things people are worried about. There are plenty of flavored medications, plenty of intoxicants included in foods and tasty beverages and candies, and plenty of adult things that could be attractive to children.

      What happens is that even people who are typically really rational and thoughtful about marijuana and realistic about its actual health risks sometimes still have that incohate moralism in the back of their mind and it manifests itself in these fears. It really is going to be OK if some more people use marijuana and this intoxicant is marketed like other intoxicants. Society will survive. This doesn’t mean we shouldn’t regulate or there aren’t going to be some things that we might prudently prohibit. But we have to get over the fear of an increase of pot usage and think carefully about harms and analogies to other legal products.

  8. As a marketing professional I know, that after the initial gold-rush and as the novelty of legal marijuana wears off these businesses -if they don’t think ahead- will be back on the same level as they were before legalization. These are the golden days and they probably have more customers than they could handle right now. But once it’s over, competition will be fierce. Those who invest in online marketing right now will profit from it tremendously.

    Now it’s the time to funnel some of the extra revenue into building a strong online presence, which will set the business on a growth track for years to come.

    I have compiled this list of handy marijuana SEO tips for marijuana stores in Colorado but some of the medicinal marijuana dispensaries could learn from this as well.

    DIY marijuana online marketing seo tips

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