Weeding out the bugs in cannabis legalisation policies

As the new President-Elect was making his victory speech on 9 November last year, some liberals were rejoicing, rather than despairing, about what had just taken place at the ballot box. What they saw, sprouting among the rubble of the swing-state firewall that was meant to deliver the election for Hillary Clinton, were some very literal green shoots of progress, as four states – Massachusetts, Nevada, Maine and California – voted to legalise cannabis for recreational use.

This is an interesting feature of US elections: as voters head to the polls for both presidential and mid-term elections, they also have the opportunity to approve or reject proposed legislative changes at the local or statewide level. There are various mechanisms by which an issue can appear on the ballot, but cannabis legalisation made it after enough citizens in those four states submitted signatures on petitions to their state governments – it was direct democracy in action.

One of these states, California, is particularly significant. The Golden State has a population of more than 38 million and is, by itself, the sixth-largest economy in the world – bigger than the whole of France. When a power of that size acts – especially when it’s creating a brand new product market – it’s likely to have implications for the rest of the world.

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Source: German Lopez, Vox

With the ballot initiatives approved by voters on 8 November, there are now a total of eight states in the US, along with Washington DC, that have fully legalised cannabis for recreational purposes. The governments of Canada and Uruguay have also committed to go down the same path. So whatever your views on legal cannabis, it’s worth thinking about the policy issues it raises – because it’s happening. Indeed, in many places, the debate has already shifted to how, not whether, to legalise the drug.

In the US, the reforms have all followed a relatively similar model, making cannabis available for purchase primarily through for-profit companies operating in a commercial market – essentially the same as how the alcohol trade is run. This isn’t too surprising, as the drug policy debate is often presented as a simple binary choice between prohibition and a profit-driven, alcohol-style model of legalisation. But there are actually many more policy options for how cannabis could be made legally available, as illustrated in the below chart from researchers at RAND.

Source: ‘Options and Issues Regarding Marijuana Legalization’

Source: ‘Options and Issues Regarding Marijuana Legalization’

Unlike some of these other models, the emerging approach to legalisation in the US – which includes low retail prices, prominent high-street cannabis stores, and aggressive advertising and marketing – seems largely designed to prioritise private profit over public health. To see more clearly why this is the case, it’s important to understand that, in order to survive financially, the for-profit cannabis business needs people to become dependent on the drug. The 20 per cent of cannabis users who are daily or near-daily users account for around 80 per cent of the total amount of cannabis consumed. So commercial companies have a huge financial incentive to create as many heavy cannabis users as possible. The alcohol industry is the same. Hence the call of some campaigners to ‘regulate cannabis like alcohol’ is probably the least-cautious way of going about legalising the drug.

Many researchers have, however, outlined steps that policymakers can take if they want to legalise cannabis in a public-health-friendly way.1 They highlight the need to, among other things, use price controls to encourage the consumption of lower-risk, lower-potency strains; limit the types of products sold (that means no cannabis-infused sweets that are likely to appeal to children); mandate plain, pharmaceutical-style packaging; prohibit all advertising; and restrict consumption in public places. A state monopoly on the cannabis trade would make it easier to implement such measures, but in the US, where that currently isn’t an option, it has been suggested that production and supply could be placed under the control of non-commercial entities such as ‘for-benefit’ corporations. In this way, those selling cannabis wouldn’t have a financial incentive to maximise consumption.

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An example of the kinds of cannabis-infused sweets on sale in some US states

Some of these measures will actually be put into practice, as real-world examples of non-commercial approaches to legalisation are in fact emerging. Uruguay’s legal cannabis market is still in development, but will be run as a state monopoly, with cannabis only available for sale from registered pharmacies, and a ban on all advertising. And in Washington DC, a legal wrangle has meant that, despite now being legal, cannabis cannot be sold for profit. Instead, a ‘grow and give’ system exists there: adults can possess, grow and give the drug to each other – but not in exchange for money. Added to these are more established quasi-legal cannabis markets: in the Netherlands, for example, sales of the drug through so-called ‘coffee shops’ are permitted, even though production and supply is still banned. And Spain has a system of ‘cannabis social clubs’, non-profit organisations that allow registered members to grow and consume cannabis within certain limits.

So why haven’t these more moderate forms of legalisation caught on in the most powerful country in the world? One part of the problem may be that a free-market mindset and distrust of state intervention are more prevalent in the US than in, say, some parts of Europe. What we may see as commonsense regulation may be seen as an unjustified infringement of liberties in America. Illustrating this point, the US Supreme Court has previously ruled in favour of ‘commercial speech’, granting corporations a First Amendment right to promote their products, no matter how hazardous to health they are.

Another part of the problem may be the route by which legalisation has been implemented in the US. Ballot initiatives, like the ones that passed on 8 November, can be a bad way of making public policy – especially when that policy involves establishing a brand new market and a complex new regulatory infrastructure to manage it. What’s on the ballot is usually made intentionally simple, to avoid confusing voters. That can be a good thing; but the flip side is that the initiatives can lack vital nuance and detail, and are often funded and promoted by campaign groups that may be reluctant to admit that an issue is more complicated than it seems.

But the legalisation debate is not as straightforward as it is often made out to be. Legalisation is not a policy end-point; it is simply a process – namely, of making something illegal, legal. There are decisions to be made about what comes at the end of that process. All legal products are subject to at least some degree of regulation, and whether legalisation produces better outcomes than continued prohibition hinges on how those regulations are designed.

So while the US is certainly leading the way with cannabis legalisation, it shouldn’t be assumed that the way it’s being done there is the only way to do it. There are other, more cautious alternatives that could deliver greater benefits. The green shoots of cannabis legalisation will need to be carefully cultivated if they’re to grow into successful policy.

Watch the winners of Policy Idol 2016 pitch their plan for legal cannabis regulation

Watch the winners of Policy Idol 2016 pitch their plan for legal cannabis regulation

1. See, for example: Kilmer (2014); Barry and Glantz (2016); Pacula et al. (2014); and Room (2014).

George Murkin is Communications and Events Officer at the Policy Institute, and previously worked in drug policy for an NGO.

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