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To Legalize or Not To Legalize

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By Russell Brown

02/25/14

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And then there’s the unanswerable question: what to do about cannabis and driving?

“We already know marijuana and driving is a growing problem in states with loose marijuana laws,” says Sabet.

“In Colorado, though traffic fatalities fell 16 percent between 2006 and 2011—consistent with national trends—fatalities involving drivers testing positive for marijuana rose 112 percent.”

“Nobody wants to say it out loud, but I think it probably needs a good leaving alone,” says Kleiman.

“Here’s the problem: it’s clear that being stoned decreases your executive function and multi-tasking ability. It renders many people inattentive.

“It’s also clear that knowing you’re stoned leads people to be cautious—the opposite of alcohol. The stereotypical stoned driver is driving 15 miles an hour in a 40 zone. He’s paranoid about how he’s driving.

“So that sounds like good news. The other thing that sounds like good news is, when you let an experienced pot smoker get as stoned as they want and put them on a simulator, their degradation is at about the level of .08 THC. That’s just about the threshold of what’s considered impaired driving for alcohol.

“So all of that doesn’t sound like it adds up to extremely dangerous driving. Now the bad news—people are empirically impaired for several hours after they’re subjectively back to baseline. So the people who don’t think they’re stoned are the potentially dangerous drivers.

“THC is fat soluble, and unless you do very fancy stuff with metabolite ratios, you can’t tell whether somebody smoked two hours ago or three days ago. And so if you have a strict nanogram per milliliter rule, which is what’s in the Washington statutes, anybody who’s a regular pot smoker can never drive. That’s not workable.

“And the other bad news is that people don’t just use pot. So here’s a rule I would have. If you have cannabis on board, then your blood alcohol content limit is zero. You may not drive with both cannabis and alcohol in your system. And that’s an easy rule to observe. Your BAC will be zero n hours after your nth drink. So if you are going to be a smoker, you may not drive for as many hours as you’ve had drinks. Zero’s a good number.”

The lack of a non-invasive roadside test is a significant factor, he says.

“Unless there’s an accident and someone’s injured, I just don’t think anyone’s going to be caught for driving under the influence of cannabis.”

Here’s something everyone can agree on: if cannabis is to become one of the legal drugs, it’s important to avoid the kind of damaging commercial practices that have grown around tobacco and alcohol. 

“If any millionaire ‘ganjapreneurs’ attempt to create the Starbucks of pot, it could trigger a federal backlash and set us all back,” says Tree.

“Personally, I would ban commercial branding because it would create the drive to increase market share, but there are many libertarians in the reform movement who view business interests as sacrosanct. Our First Amendment could also complicate advertising restrictions.”

“Unlike with tobacco in the past, we must always courageously look at the evidence of what policies are doing well and what needs to be changed,” says Malinowska-Sempruch.

“Unlike street drug dealers, any business that gets into the market has to play by the rules. And I don’t know a single drug policy reformer who will let the mistakes of Big Tobacco be repeated.”

“In the US, it will be very difficult to stem the tide of commercialization,” counters Sabet.

“We have lived through 100 years of misery with Big Tobacco. Why on earth would we want to repeat another 100 or more years with Big Marijuana?”

“Big Tobacco isn’t the right way to look at it,” says Kleiman.

“If you’re selling a product that creates a subgroup of users who are heavy, out of control, problem users, they account for such a large fraction of the total volume sold, they’re your primary market even though they’re a minority of users,” he says.

“So it’s not that there are evil people who decide to go into these industries.These industries create natural economic interests, provider interests that are flatly contrary to the interests of consumers and the public. That’s the case for not having a commercial market – for having either grow your own plus co-ops or a state monopoly.”

The potential for enterprise isn’t limited to supplying the product. Colorado’s reform created space this year for the first Cannabis World Cup (a kind of A&P show with prizes for buds rather than pumpkins) to be held on American soil. An associated events company quickly sold out a pot holiday, with visits to growing and supply facilities by day and parties by night. Fowlie was the only non-American to get a place on the tour – making him the world’s first fully legal international cannabis tourist.

The promoters, he says, were not anyone’s archetypal weed dudes.

“They looked like they’d run an IT company. They were very savvy with the media and had a lot of media following them.”

There are many other angles. Tree believes the politics of legalization will tear apart the conservative and libertarian wings of the Republican Party. No one seems quite sure how legalization will affect general policing when the smell of cannabis is no longer an all-purpose source of probable cause for stop-and-search actions.

For Fowlie, the key impression was of the similarities and differences between the American reforms and New Zealand’s new Psychoactive Substances Act. 

“What we’re doing with that Act in New Zealand is almost exactly what they’re doing with real, natural cannabis in the United States. We’re licensing producers here, they’re licensing producers in Colorado and Washington. The irony here is that, if natural cannabis was available in New Zealand, there would be very little demand for the synthetic stuff.

“Don’t get me wrong—I think the Psychoactive Substances Act is a really good approach to controlling drugs, probably the best approach that’s ever been done anywhere in the world, and it’s something we should really be proud of. It might well come with some problems and some teething issues that we won’t be aware of yet, but that hypocrisy of not allowing the real cannabis is really jarring. People I talked to about it in Colorado thought it was astounding.”

No one thinks Washington and Colorado will be the end of the story. More US states and perhaps Central and South American countries will follow. And in New Zealand, it may not be a big leap for natural cannabis to come under our Psychoactive Substances Act. 

For Sabet, there is no good rationale for any of it.

“It would mean more addiction, health costs, social problems and safety risks than we will be able to handle. That doesn’t mean our current laws can’t be reformed – but legalization is a risky way to do that.”

The experts differ sharply on whether the pot legalization experience would have implications for the status of other illicit drugs. Kleiman and Malinowska-Sempruch regard cannabis as a distinctly separate case, but Rolles believes “the rationale is no different, and we are wary of what you could call ‘cannabis exceptionalism’. Some people argue we should regulate cannabis because it’s safe—we think it should be regulated because it’s dangerous, and the same goes for most other drugs. No drug is made safer when produced and sold by unregulated criminals.”

Kleiman notes the state propositions were strongly marketed on “taking pot out of the hands of criminals” to free up law enforcement for more important tasks.

“But there’s a different, somewhat more obscure argument that may actually be the winner, which is that cannabis may turn out to be a substitute for alcohol and possibly for other drugs of abuse. Because it’s pretty clearly the least harmful of the bunch, if cannabis substitutes for alcohol, it wouldn’t have to substitute very much for the gains from reduced heavy drinking to overwhelm any increase in the cost from heavy dope smoking.

“Yet the uncertainty about the effect of cannabis on alcohol consumption is large enough to swamp any rational calculation. We don’t think there’s enough science in the world to give us the answer to the question.

“It’s just … here be tygers. That’s the way the map reads.”

Russell Brown is an Auckland-based writer and blogs at Public Address.

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