Lies, damned lies, and “medical” marijuana

Industry lobbyists lie.
That includes the “medical marijuana” industry.

The “medical marijuana” business – which in practice gets most of its revenues from non-medical users and from buyers intending to resell illegally, including those who resell to minors – now grosses more than $1 billion per year nationwide. Of course, every billion-dollar industry needs a lobbying group, and the green-cross crowd has one: Americans for Safe Access, which relentlessly talks about the interests of patients while single-mindedly serving the interests of the sellers.  (Like most of the rest of the “drug policy reform” movement – with the exception of MAPS (Update: and CA Norml) – ASA has yet to spend a nickel on medical research or safety studies; everything goes to campaigning, litigating, and lobbying.)

And, since no trade association is complete without dishonest 30-second political ads, ASA has decided to celebrate the passage in the House of the Rohrbacher amendment – designed to protect medical-marijuana sellers (in states where it’s legal) from federal enforcement – by grossly slandering some Congresscritters who voted against the amendment. Here’s the attack on Andy Harris of Maryland.

As the image of a four-year-old and his mother come on the screen, he voice-over says, “Why would Congressman Harris vote to send patients like this to prison?”

Why, indeed?

Of course, Harris voted for no such thing. (As a Republican, he’s voted for much dumber things, including making John Boehner Speaker, but that’s a different story.)

Let’s start out with what what the Rohrbacher provision does, and doesn’t do. What it does is forbid the expenditure of federal funds to prevent states from implementing medical marijuana laws. What it doesn’t do is protect patients from anything whatsoever. Of course, a different amendment could have been proposed, legalizing (at the federal level) possession of cannabis by patients with medical recommendations, and protecting them against the non-criminal disabilities imposed on users of illegal drugs in employment, housing, child custody, and so on. That would have been about protecting patients. [Update: Such an amendment might have been out of order on an appropriations bill, but lots of legislation passes though the House to which it might have been germane.]

But that’s not what the House voted on. The actual Rohrbacher amendment is designed to protect growers and sellers, since in fact federal agents aren’t in the habit of making cannabis-possession arrests. When you hear about “medical marijuana patients” getting busted federally, it’s almost always someone growing far more cannabis than anyone could personally use.

So the ASA ad embodies – repeats – a flat-out lie, no different from the lies told by lots of other industries seeking political advantage (or, to be fair, the lies peddled by the official and unofficial proponents of drug-war-without-end).

Will anyone on the pro-legalization side of this debate stand up to say that a valid position doesn’t require dishonest arguments?

Update [re-updated]<  Dale Gieringer of California NORML points out that his group has indeed funded safety-related research. Somewhat self-referentially, ASA defends itself from my charge of lying by lying some more, and flinging around some insults. (The director of ASA complains that I, as a mere academic, don’t understand “political strategy.” Actually, I do: it’s precisely ASA’s political strategy I was complaining about.) What ASA doesn’t do is try to show that the provision in question actually protects patients, or that the people who voted against it were voting to send little children and their mothers to federal prison.

ASA points to a case in Western Washington where five people, all with medical marijuana recommendations, are being prosecuted federally for growing 74 (or, some sources say, 68) plants, supposedly for their own use. Washington law permits 15 plants per patient, but also sets a limit of 45 plants total for a collective grow, so whether what this group was doing in fact fit within state law isn’t clear.

While the charge is “conspiracy to produce and distribute,” it doesn’t appear that the federal authorities have alleged that the group was selling cannabis rather than merely using it. Assuming a fairly modest yield of 100 grams per plant, one harvest per year, and very heavy consumption of 3.5 grams per day per user, an individual might actually succeed in using that much cannabis personally. They’re facing additional charges for having firearms (apparently just hunting rifles), which is legal by itself but an aggravation of a drug-trafficking charge.

If all the facts are as asserted by the defense, this case seems to be one of serious prosecutorial over-reach, which is not an unknown phenomenon. I’m glad the original post said that federal prosectuions were “almost always” (rather than “always”) for more than the grower could possibly use.

If the ASA ad had used a photo of the defendants in this case, it would have been (sort of) accurate to say that Representatives voting against the Rohrbacher provision were voting to send “patients like this” to prison. It still wouldn’t have been entirely accurate, since nothing in the Rohrbacher provision would disallow such a prosecution, which after all does not “prevent” Washington from administering its medical-marijuana law.

But in fact the ad used the photo of a four-year-old epilepsy patient and his mother: a much more emotionally moving image.  The problem is that there is no federal case to which such an image would have been relevant. That’s what the ASA director calls “political strategy.” I’m a simpler soul, so I just call it “lying.”

So far, my score on getting other advocates of cannabis legalization to criticize this sort of behavior is zero. One advocate, who agrees in a private email that the ASA ads “display a negligent disregard for the truth that is unfortunately all too typical in political advertising,” refuses to criticize them in public. While he personally makes it a rule to stick to the truth, he says, “if an ally of ours lies, it is neither politic nor our responsibility to correct them publicly unless specifically asked. It’s foolish for any public advocacy organization to attack an ally publicly. That’s how you fracture and weaken your movement.” He goes on to draw a disinction between the ethics of advocacy and the ethics of academic inquiry.

I agree that the two practices follow different rules, as they have different purposes. But I think the distinction between truth-telling and lying cuts across those professional differences: there are honest and dishonest academics, and there are academics who refuse to criticize bad or even dishonest work if it’s on their side of a dispute. There are also advocates who agree with me about the importance of integrity and civility in debate, and that integrity and civility can only be maintained if each side of a dispute is prepared to police its own erring members. Having the two sides criticize each other just moves you further down the rabbit hole of mendacity and mutual hatred.


A reader points out that the alternative provision I suggested might have been out of order as legislating in an appropriations bill. That’s a reasonable point (of order). So here’s an option not subject to that objection: “No funds appropriated by this or any other bill shall be used to prosecute a case of marijuana production, unless there is clear evidence that the production was for sale rather than personal use.”

On the other hand, if the supporters of cannabis prohibition don’t want to be accused accurately of sending patients to federal prison, there’s nothing preventing them from proposing to make medical use an affirmative defense against charges of cannabis possession or production for personal use.  But, as usual when something sensible is proposed to lessen the harm done by prohibition, the silence from that side of the aisle is deafening.

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:

6 thoughts on “Lies, damned lies, and “medical” marijuana”

  1. Yes, I will say that a valid position doesn't require dishonest arguments.

    I've worked with a lot of the members of ASA over the past year and I don't know the details of what they have, or have not, spent on medical research or safety studies. I do know that they have been working with the American Herbal Products Association in developing a "Patient Focused Certification Program" for retailers, producers, and the like. Creating higher standards for operators in the industry certainly would be in the interest of patients.

    For that matter, I think it is a bit disingenuous to suggest that because ASA focuses on lobbying, litigating, and campaigning means that they do not focus on patients. Changing laws and improving regulations related to the industry (through lobbying, litigating, campaigning) seems to me to ultimately have a net positive effect on patients. If you can create protection for the producers and store owners, then of course you create a more safe and secure environment for patients.

    Also, we have a case here in Washington (dubbed "The Kettle Falls Five") which certainly is about the federal government going after individual patients. Maybe you and I will differ on how much marijuana "anybody could personally use", but that's really not the point. If a patient is following state law, we should hope that the feds will hold off on litigation. That is why this recent amendment is very important for patients.

  2. Edibles continue to have safety issues, and now there are some efforts at marketing edibles which have gotten the attention of the Hershey candy company. A store in Denver has been packaging edibles in wrappers which resemble popular Hershey candies. For example, "Reefer's Pieces" come in a wrapper that look just like "Reese's Pieces," and "Mr. Dankbar" in wrappers that look like "Mr. Goodbar." Hershey's is not amused at these "Hashee" bars and is filing suit against their makers. This has come in the wake of much publicity over some serious adverse effects from unwary adults consuming more THC than they could handle. These cannabis bars look enough like the Hershey products to fool a child into thinking that they are just candy.

    This is worthy of Wait Wait Don't Tell Me, but some small kid could have something really bad happen if they were left lying around unguarded.

  3. Slightly off-topic, but don' t miss these nice parodies at The Guardian of other NYT columnists than the Dowd on a variety of controlled substances. H/t Paul Krugman, who is one of them.

    1. "Purported academic", as the ASA labels Mark, is a startlingly counterfactual insult. It's like calling me a "purported" pensioner.

  4. Prof. Kleiman, I may be the advocate you're looking for. Although I have not called out ASA specifically for these ads, I have been using the maximum volume on my megaphone to point out that the interpretation of the Rohrabacher-Farr amendment favored by ASA and so many other groups (even MPP, who should know better) is just plain wrong. So you could say I've been attacking the philosophical foundations of this ad.

    I'm pleased to see that your interpretation of the amendment is largely correct, although I do have one bone to pick with you over it. Rohrabacher-Farr was all about withholding funding to prevent the implementation of state policies – doesn't that mean that ASA's ads actually protect state governments and not businesses? I can see the argument that collectives and dispensaries benefit indirectly from having state regulation which isn't constantly threatened by federal injunction. But I don't see how you get to your conclusion that the amendment was "designed to protect growers and sellers."

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