How to legalize cannabis: the case of Maine

There’s more to legalizing cannabis than setting up a market. The extent of post-prohibition public-health and public-safety problems depends on the details, and especially on price.

One reason I distrust the state-by-state process of legalizing cannabis and prefer a national approach is that the people drafting the laws and writing the regulations tend to reason more or less along these lines:

“Cannabis and alcohol are both intoxicants. We know how to regulate alcohol, so we should handle cannabis the same way.”

There are two things wrong with that.

First, cannabis is like alcohol in some ways but unlike it in others, so it needs a different control regime. (E.g., it’s not clear that we should criminalize cannabis use in public, use by minors, or stoned driving; doing so risks a kind of “backdoor re-criminalization.” In each case the link to aggression and violence that is so marked with alcohol is weaker, or may not even exist, with cannabis.)

Second, the current alcohol control regime leads to an estimated 88,000 excess deaths per year, and incredible amounts of disease and misery. That doesn’t look like a successful policy to me, and applying that policy to cannabis would be a clear case of “Doing the same thing and expecting a different result.” If you were to ask a state alcohol regulator about the prevalence of Alcohol Use Disorder among high-school students, or the number of alcohol-involved murders or suicides, you’d mostly get a blank look. A liquor board usually understands its job as making sure the taxes are paid, that the premises are orderly, and that licensees don’t sell directly to minors. The impact of alcohol on public health is the province of the health department, while its impact on public safety is a problem for the police and the prosecutors.

So with cannabis. Most state regulators are more interested in creating an orderly legal market that can displace the illicit market than in serving a broader policy vision that includes minimizing the predictable bad side-effects of commercial legalization.

BOTEC Analysis was hired by Maine’s Office of Marijuana Policy to review a draft set of regulations, which were pretty much as we expected. 

The introduction to our comments, explaining what we were trying to do, is pasted in below the fold.  While the comments are linked to specific sections of the Maine regulations, some of the ideas might be of interest to regulators elsewhere, and to legislators and advocates drafting new legalization statutes. 

Continue reading “How to legalize cannabis: the case of Maine”

Drunk driving, stoned driving, and official lying

Threats to society, in increasing order: (1) stoned driving (2) drunk driving (3) official lying.

As if on cue, the day after I blasted the dishonesty of a group of cannabis advocates, comes Radley Balko to report what appears to be an even more outrageous bit of bamboozlement from the anti-pot side. It now comes out that the “stoned driver” who plowed his truck into a pair of police cars with flashing lights had a blood-alcohol content of .268%, which Balko (or at least his headline-writer) correctly identifies, using the relevant technical vocabulary, as “drunk off his gourd.” (Sometimes read as “drunk out of his gourd,” or the shorter and more graphic “sh*tfaced.”) This driver was at more than three times the legal limit of .08%.

The involvement of alcohol is hardly surprising. Drunk driving is much more dangerous than stoned driving, and the combination is worse than either drug alone.

Yes, Keith Kilbey was also at about double Colorado’s legal limit for THC. But, as Balko points out, it’s virtually impossible to believe that the cops at the scene didn’t notice that the driver was blotto; a Breathalyzer would have been routine under the circumstances. So when state police Cpl. Heather Cobler told reporters that “we believe marijuana” caused the crash, she was almost certainly being … economical with the truth. If I were running the Colorado State Police, Cpl. Cobler would have a whole bunch of ‘splainin’ to do. The credibility of police as witnesses is a key resource for law enforcement; if they routinely lie to reporters, why should jurors believe them?

But the responsibility here goes way above a corporal’s pay-grade; the department should have come forward to correct the story as soon as the toxicology results were in, rather than waiting for others to notice the falsity of the original assertion. It seems to me that reporters in Colorado should be demanding an official explanation of how the misstatement was made, why it wasn’t promptly and frankly corrected, and what institutional steps are being taken to prevent the repetition of such misconduct. Whether reporters ask or not, it’s the responsibility of the department to make the necessary inquiries and take appropriate administrative action. Continue reading “Drunk driving, stoned driving, and official lying”

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?

Continue reading “Lies, damned lies, and “medical” marijuana”

Cannabis use and problem drinking: NORML tries a fast one.

A NORML press release converts a discouraging finding about cannabis and alcohol into an encouraging finding. Yes, frequent cannabis users in Sweden are less likely to engage in problem drinking: but only compared to occasional users. Frequent users are actually more likely to report at-risk drinking behavior than non-users.

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.

[emphasis added]

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.

Cannabis law and policy

No, Holder is not acting “lawlessly” by accomodating legal pot in CO and WA, or by keeping pot in Schedule I.

Bloomberg just posted my essay about  the federal response to cannabis legalization in Colorado and Washington State and about the “rescheduling” issue, both of which have been the subject of rather confused debate.

Short version: No, the law doesn’t require the feds to shut down the Colorado and Washington State initiatives, and “rescheduling” cannabis would be a mostly pointless exercise; it’s much more important to remove bureaucratic barriers to medical research.

That essay doesn’t include one item on which the discussion has been especially confused: the claim that the President, by himself, has the power to reschedule. In fact, the Controlled Substances Act gives that power to the Attorney General, and requires that the AG get medical advice from the Secretary of HHS and take that advice as authoritative.  The AG has delegated his responsibility to the DEA Administrator, and the HHS secretary has delegated hers to the Assitant Secretary for Health.

Those powers are not arbitrary:  the law says that rescheduling requires an “accepted medical use,” and the courts have held that to mean the satisfaction of each of five criteria:

                        a.    the drug’s chemistry is known and reproducible;

                        b.    there are adequate safety studies;

                        c.    there are adequate and well-controlled studies proving efficacy;

                        d.    the drug is accepted by qualified experts; and

                        e.    the scientific evidence is widely available.

[Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994)]

Arguably, the AG and HHS Secretary could decide to change that legal standard; the courts, having deferred to administrative discretion in the earlier case, might do so again. But it’s not as simple as someone saying, “Gee, I’d like to reschedule cannabis this morning.” And though the President appoints the officials in question and can fire them, the power under the law does not belong to the President.

Moreover, the law explicitly requires that any substance covered by the international drug conventions – which marijuana is – be controlled, regardless of any other factors. Thus the Executive Branch as a whole lacks the power to remove cannabis from the CSA entirely.

Since Jacob Sullum and his friends get their feelings terribly hurt when I point out that he’s talking through his hat, and since I purely hate hurting people’s feelings, I won’t mention him here. That will save him the effort of once again misrepresenting not only the law but what I said about the law, and about his misunderstanding of it.   But the next time he decides to accuse the President – who in real life was a law professor – of not having read the law, perhaps Sullum will consider … reading the law.

Footnote Eighteen members of Congress seem to share this misundestanding, which Americans for Safe Access – the lobby for the medical-marijuana industry – is doing its best to promote.




How to legalize cannabis

Debating *whether* to legalize pot is pretty pointless. The important debate now is *how* to legalize it. Some notes toward an essay on that topic.

Debating whether to legalize pot is increasingly pointless. Unless there’s an unexpected shock to public opinion, it’s going to happen, and sooner rather than later.

The important debate now is how to legalize it. The results of legalization depend strongly on the details of the post-prohibition tax and regulatory regimes. In the current situation, continued prohibition might be the worst option. Full commercial legalization on the alcohol model might well be the second-worst. But that’s the way we’re heading.

I’m preparing an essay about designing a post-prohibition regime. After the jump is a set of topic sentences and paragraphs for sections of that essay, not yet in a well-defined order. (UPDATE: Numbers inserted to facilitate comments.)

Substantive comments are welcome. Rant and snark will be ruthlessly zapped.

Continue reading “How to legalize cannabis”

Cannabis taxes will wind up too low, not too high

The big threat to cannabis legalization isnt high taxes; it’s low taxes and loose regulation.

Legal cannabis will naturally be much, much cheaper than illegal cannabis. A joint is the same sort of item as a teabag: the dried flowers of a plant in a wrapper. A fancy teabag costs a dime at the supermarket; the marijuana in an average joint costs about $4 (0.4 gram of sinsemilla flowers @ $10/gram) on the current illicit and quasi-medical markets. The combination of not having to worry about law enforcement and the economies of mass production will inevitably drive the joint price down close to the teabag price. (Generic tobacco cigarettes can be manufactured for about two cents each; the remainder of the price is marketing expense, quasi-rent on brand names, and taxes.)

Now that the federal government has made it clear that state-licensed production in Washington and Colorado will mostly get a pass from federal law enforcement, and now that Washington has decided to allow outdoor growing, avoiding the production bottleneck that might have resulted from the lags in local land-use approval for growing facilities, I’d expect to see much lower-than-current prices in Washington State’s commercial stores no later than next fall. (If I had been running things, I would have started with lower tax rates to speed the transition to the legal market, and then raised taxes to offset the fall in market prices, but the tax rates were in the legislation the voters passed.)

Even at current prices, cannabis is a remarkably cheap intoxicant. A  drinker who hasn’t built up a tolerance might need about $5 worth of mass-market beer to get sloshed; a similarly fresh cannabis smoker could float away on half a normal joint: call it $2 worth. Colorado medical dispensaries already offer their “weekly special” strains of sinsemilla at $5/gm., with volume discounts, and vaporization seems likely to lower the effective cost substantially.  Anyone who’s worried about the price of cannabis is spending far too much time stoned.

Taxation, even if it is very heavy on ad valorem (percentage-of-price) basis, won’t change that picture much; Washington state will collect something like 40% of total retail prices in tax, but 40% of “damned near free” isn’t very much. Colorado’s taxes will be even lower.

The illicit markets may start out with a price advantage over taxed and regulated commercial markets for a year or two. Even then, the quality/reliability/ legality advantages enjoyed by the legal stores would be expected to quickly push the illicit business to the margins, as legal alcohol has done with moonshining. That will be especially true if the states that legalize make a vigorous law-enforcement push against purely illicit activity.

The untaxed and (in Washington State) unregulated quasi-medical markets may also enjoy a price advantage; if people with medical recommendations can buy their cannabis tax-free, we should expect a certain amount of arbitrage. How best to rein in the out-of-control medical-recommendation systems is a challenge that Washington and Colorado (and California, which hasn’t legalized for non-medical use but which has more “medical marijuana” outlets than it has Starbucks) will confront over the coming months and years.

So the biggest worry about legalize cannabis would be a big upsurge in heavy use, and that worry would be exacerbated to the extent that the growth in heavy use is among juveniles. (Provision to minors is by definition illegal, but, as with alcohol, it seems unlikely to generate a distinct illicit market; younger smokers who can’t buy in the stores will be supplied by older siblings, older friends, their parents’ supplies at home, and straw purchasers.

How big that problem turns out to be depends in part on unknowns and in part on policy choices. If cannabis prices are allowed to fall to something like their free-market levels, a very large increase in heavy use would be the likely result. Preventing that will require heavy specific-excise taxation (perhaps on a per-milligram-of-THC basis) and enough enforcement to prevent the evasion of that tax.

The other approach to limiting the increase in heavy use and use by minors would be on the information side: limits on marketing, required vendor training, aggressive consumer information both at point of sale and in the community.

Naturally, true-believing libertarians insist that cannabis legalization be done in the way likely to generate bad outcomes. Taxes BAD! Regulations BAD! “Commercial speech” is SACRED! The free market FOREVER! And of course drug abuse is a merely imaginary problem, so cannabis is just an ordinary commodity that the market will handle perfectly.

It’s possible that they’ll get their way, and that as a consequence the results of cannabis legalization will be just about as bad as the drug warriors keep predicting: the reproduction of our very bad, no good, awful alcohol markets. It’s barely possible – this is what my drug-warrior friends hope – that the results will be so awful that the voters shy away from legalization altogether.

Jacob Sullum has elevated the temporary risk that relatively high taxes starting will slow down the migration from the illicit to the licit market into an existential threat to the legalization project, and is more or less encouraging Colorado pot fans to double-cross the rest of the voters by rejecting the taxes that were the premise of last year’s legalization push. “From a consumer’s perspective, something has gone terribly wrong if legal marijuana prices do not end up being substantially lower than black-market prices.” That’s true, if by “consumer” you mean someone who smokes multiple joints per day. For anyone else, the cost of weed is way down in the rounding error of a personal budget; a weekly smoker might now be paying something like $100 per year for cannabis, even at current prices.

Andrew Sullivan seems to take this seriously. Talk about solving the wrong problem!