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To Legalize or Not To Legalize

Colorado, Washington and Uruguay have legalized recreational cannabis, but there are still many questions around how these systems will work. Russell Brown investigates.

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By Russell Brown

02/25/14

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The Fix is co-publishing occasional articles with the New Zealand Drug Foundation’s excellent magazine Matters of Substance, which initiated this report.

You’re going to legalize and regulate the trade in cannabis. It’s the thought experiment at the center of any argument for drug law reform, but this time it’s for real. What do you need to know?

“How much cannabis is currently sold, by the ton and by the dollar?” asks Mark Kleiman. “How much should you expect to sell legally? How many square feet of production capacity is that? If you’re going to allocate retail outlets to counties based on consumption, what would that map look like? For what impurities and adulterants should cannabis be tested, and what’s the available testing technology? What’s the environmental impact?”

These are a few of the questions Kleiman, the new “pot czar” (he doesn’t much like the term) of the US State of Washington, has been proposing and trying to answer since voters last year, via Initiative 502, instructed their state to legalize the production, sale and use of cannabis.

The former Department of Justice analyst has been preparing for this day for a long time—it’s nearly a quarter of a century since he wrote Marijuana: Costs of Abuse, Costs of Control. The jump from theory to practice must have been a thrill.

“Oh yeah,” agrees Kleiman. “It was completely irresistible when this came along.”

The real work began in March when the Washington State Liquor Control Board selected a team from the Massachusetts-based think tank BOTEC Analysis as its technical vendor. Kleiman, as CEO of BOTEC, leads the project team, which includes Beau Kilmer, Co-director of the RAND Drug Policy Research Center and Kleiman’s co-author on last year’s book Marijuana Legalization: What Everyone Needs to Know.

Kleiman is now one of the key figures in a cluster of experiments that will be watched all over the world. Colorado, like Washington, passed an initiative to legalize the production, sale and use of cannabis, and the government of Uruguay has passed laws introducing direct state control of a cannabis market.

“Everyone in drug policy will be inevitably looking at these experiments closely—they are hugely important,” affirms Steve Rolles of the British drug policy foundation Transform.

“Lessons will need to be learnt from both successes and failures, and the fact that there are different models in the two states—and in Uruguay—is also useful from a comparative perspective. It’s much easier to study a legal market than an illegal one, so whether the outcomes are good or bad, there will certainly be a lot of quality data to inform future debate.”

The fact that Kleiman is helping Washington regulate its new market doesn’t mean what’s happening there is necessarily what he would do.

“My ideal world would not have commercial sales. But given their voters wrote their laws for them, I think both Colorado and Washington are doing a perfectly reasonable job of setting up regulation.

“They’re operating under the alcohol model. As the liquor board, they are held responsible if their licensed sellers are reselling to minors. They’re held responsible if there are unlicensed sellers, if bars are operating past the allowed times or serving people who are obviously drunk or allowing a lot of noise that bothers the neighbors. And they’re held responsible if there’s tax evasion. That’s the complete list.

“They’re not held responsible when somebody gets drunk and commits suicide or wrecks his car or beats up his girlfriend or commits a rape. And I think it’s wrong. If I were setting up a liquor control system, I would say to local authorities, you’re accountable for minimizing the public damage from heavy drinking, and figure out how to do that.

“I think, in the case of cannabis, there in fact is a political matter. They’re going to be held accountable for a much wider range of outcomes. But it’s not easy for them to think in those terms.”

“‘Legalization’ is just a word, it’s not a policy or a strategy,” observes Kasia Malinowska-Sempruch, Director of the Open Society Global Drug Policy Program.

“To understand the policy or strategy, you need to look at what it’s intended to do. The Dutch have some smart regulations and some great public health strategies. They just never resolved the supply problem. I think what they are doing in Washington and Colorado will resolve some of those issues, but they will likely encounter their own challenges.”

She’s impressed by the attention to process in both US states (“all those studies and hearings!”), but it’s hard to debate that the most important formal move has come from the US Federal Government. US Attorney General Eric Holder advised recently that the government, while emphasizing that cannabis remains illegal under the federal Controlled Substances Act, should not meddle with the state initiatives, subject to eight enforcement criteria being met. These include keeping the trade away from minors and criminal groups and preventing the “diversion” of cannabis to other states.

Given that the Obama Administration has, with the help of a cluster of US attorneys, been actively hostile towards some state medical cannabis operations, this was big news.

“It was the best we could have hoped for under our system of checks and balances,” says Sanho Tree, Director of the Drug Policy Project at the Institute for Policy Studies.

“Holder could not change the laws—only Congress can, unless the Supreme Court declares a law unconstitutional. So he urged the US attorneys to exercise discretion and focus on the points that interest the Feds. His suggestion is not enforceable, but it is a huge political victory in that the executive branch has thrown in the towel in terms of responsible adult cannabis use.”

The hardline US attorneys at the sharp-end of the Federal Government’s hostile approach towards some medical cannabis suppliers were quick to insist that Holder’s statement would make little difference to their approach. But it seems likely that Colorado, which has been running a much tighter medical pot regime than California, is well placed to introduce a system that will keep the Feds out of its hair.

“The medical scene has been very tightly regulated in Colorado—unlike California,” says New Zealand reform advocate Chris Fowlie, who recently visited the state.

“From the seeds all the way through to actually smoking it. All the plants have barcodes on them, and they see that as one of the reasons legalization happened—it disproved all the ‘sky will fall’ claims. It was de facto legalization, and it disproved all the lies that prohibitionists feed us. Everyone over there told me that was crucial to public support growing and growing.”

Kevin Sabet, Director of the Drug Policy Institute at the University of Florida, takes a very different view of Colorado’s med-pot experience, noting the drug-testing company Conspire’s report this year that THC concentrations in the blood of state high school students had risen sharply—suggesting more frequent use.

“Anyone who has been to Colorado—or California, for that matter—since 2009 can get a sense of what full legalization looks like already,” says Sabet.

“Mass advertising, promotion, using items that are attractive to kids—like medical marijuana lollipops, ‘Ring Pots’,‘Pot-Tarts’—are all characteristics of current policy.”

But by any lights, legalization has obliged everyone to confront questions that had been put to one side under medical cannabis. A key issue for regulators is standardization, and it turns out that the science of testing cannabis product just may not be there. Rolles doesn’t see it as a problem.

“The medical cannabis industry has established ways of reliably producing standardized products. Testing is not a perfect science, but error margins can also be tested and factored into regulation models, and we would expect testing science to become increasingly sophisticated as time goes on.”

Kleiman isn’t so sure.

“I think it’s going to be a huge problem,” he says.

“There’s a question about simply measuring THC content, which is solvable up to the tolerance you need a solution to. The real issue is that, for alcohol, there’s one active agent. If I know it’s six percent alcohol, I know everything I need to know. Cannabis has at least three and maybe 40 chemicals that matter.

“I assumed when we started this we’d just look at the literature, figure out some key ratios of, say, THC to cannabidiol and require special labels for anything over some ratio. And then we look at the papers, and it’s not there. We simply do not have the science to put together a decent warning label. Can I show you a paper that shows that a 200:1 ratio of THC to CBD is riskier than 6:1? I’d bet my eye teeth on it, but I don’t have the paper for it.”

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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