On 4/20, top minds discuss critical issues in the marijuana policy debate

April 20th serves as the highest of High Holidays for the marijuana movement. This year comes, once again, with rapid policy changes around medical and recreational marijuana. Several states will vote on recreational or medical marijuana initiatives this fall, including Massachusetts, Maine, Nevada, California, Florida, Arkansas and possibly others. Legislatures in Vermont and Rhode Island are considering legalization legislation currently. On Sunday, Gov. Wolf (D-PA) signed into law the nation’s 25th medical marijuana program, and this week, the United Nations is holding a special session on drug policy.

With policy transforming at a dizzying pace, it is important to remember that attention to some critical issues can often get lost in the process. Focusing our attention on some of these issues is as important as debates about ballot initiatives, treaty obligations, and state regulations. To do this, I asked some of the top minds in the drug policy world to write a brief response to a basic question:

What is the most important aspect of marijuana policy that is receiving little or no attention, and why is it important?

A diverse group of scholars have helped me answer this question, and some of their responses may surprise you. After reading their commentary, I encourage you to continue the conversation on social media, tweeting to me @JohnJHudak using hashtag #420policy. 

How lawsuits may improve cannabis safety

It is important not to overlook the potential role that products liability litigation will play in shaping the development of the cannabis industry. In the booming business of legal cannabis, consumers demand quality, safety, and accountability from producers, and there has already been one, albeit unsuccessful, products liability class action filed on behalf of consumers who purchased marijuana treated with harmful pesticides. Companies that engage in irresponsible, deceptive, and misleading business practices will exacerbate existing concerns about the safety and legitimacy of the cannabis industry. On the bright side, it is also possible that products liability litigation will magnify consumer protection concerns, thus putting greater pressure on lawmakers to enact policy reforms that enable federal regulation of the industry. Products liability litigation will illuminate potential dangers associated with the use of novel, largely untested products continuously cropping up in the budding industry. Several years ago, any attorney brazen enough to file a class action claim on behalf of cannabis consumers duped by their dealer would face ridicule, and possibly even disbarment. The fact that products liability litigation is becoming a greater reality in the cannabis industry says a lot about how far the industry has come in terms of gaining legitimacy. 

— Emily A. Burns

Third-year Law Student, Vanderbilt University. Research Assistant to Professor Robert Mikos, working on a new Marijuana Law and Policy casebook.

Cannabis consumption: The ‘who’ and ‘how much’

People do not realize the extent to which marijuana consumption is concentrated amongst the minority of heaviest users.  The top 20% of users consume 80% of the marijuana.  Also, while the typical past-year user only used once a week, the typical gram of marijuana is consumed by someone who uses every single day.

This skew masks the very great increases in use.  The number of past-year marijuana users has grown, but modestly.  However, the number who self-report using every day is seven times greater now than it was in 1992.  Six times as many Americans report using alcohol in the past-month as report using marijuana, but in terms of daily users the ratio is now below two to one (15 million daily alcohol users vs. 8 million daily marijuana users). 

The skew also distorts perceptions of marijuana’s dependence liability.  Only about one in three who have tried marijuana went on to use on 100 or more occasions. Tobacco researchers often do not count people as “ever smokers” unless they have used at least that often.  If we adopted that definition for marijuana, then the lifetime risk of dependence would suddenly swell from 9-15% of those who have ever tried to 27-45% of those who ever used marijuana on a recurring basis. 

— Jonathan Caulkins

H. Guyford Stever Professor, Carnegie Mellon University’s Heinz College. Co-author of Marijuana Legalization: What Everyone Needs to Know (Oxford Press, 2016)

Cannabis as medicine for pain and addiction

America loves its opiates, consuming 80% of the world’s supply of prescription pain medications like Oxycontin and Vicodin.  But it’s a deadly affair, with over 25,000 overdose deaths in 2014, and, according to the CDC, over a quarter million deaths since 2001.

Cannabis has a long history of use as a pain medication, and could be a boon to the field of palliative medicine. Several studies show encouraging evidence that chronic pain patients who are dependent on daily high-dose opiates could taper to lower and safer doses, or wean off completely, using medicinal cannabis. And anecdotes are amassing from clinicians and patients from California to Maine that cannabis is helpful in moderating addiction to opiates, crack cocaine, and alcohol. Every day, drug users die of overdoses that prescribed cannabis could prevent.

Meanwhile, the recent opiate epidemic has killed more Americans than automobile accidents, handguns, and all of our wars since Vietnam. Ironically, the DEA has allowed a 39-fold increase in the production of opiate-based painkillers over the past two decades.  There has never been a more evident need to close the “hypocrisy gap” between an ancient herbal medicine and these legal, deadly, and over-marketed opiates.

The positive impact of medical cannabis on addiction treatment and overdose prevention is already evident. According to a 2014 article in Journal of the American Medical Association, the 23 states and Washington DC that have already passed medical marijuana laws have significantly lower rates of opiate related overdose deaths (as much as 40% between 1999-2010). This is a dramatic validation of the use of cannabis as a low risk substitute for, or adjunct to, prescription opiate pain medications.

With the increasing number of people losing their lives from opiate overdose, we can’t let the residual stigma that still attaches to marijuana (and it use as an effective medicine) prevent progress in ending this deadly epidemic.

— Julie Holland, MD 

Harm Reduction Psychiatrist and author. Editor, 
The Pot Book: A Complete Guide to Cannabis


— Amanda Reiman

PhD, MSW, Manager, Marijuana Law and Policy, Drug Policy Alliance


— Ernest Drucker, PhD

Research Professor and Director of the Academy for Public Health and Criminal Justice, John Jay College of Criminal Justice, City University of NY

Big Pharma’s possible response to rescheduling

I think an underappreciated worry is the damage that rescheduling marijuana could do the existing industry at this point. If the Obama administration were to place marijuana in Schedule II, say, but to repeal the Cole Memo, things would be devastating for everyone doing business in the states as well as for patients and caregivers operating in both medical and recreational states. We don’t allow people to make their own controlled substances, to sell or produce them without a prescription, or to use them in a recreational way and that model would be decimated. (Without the repeal of the Cole memo, we might have the unusual situation where recreational marijuana is ignored as now, but medical is funneled into a pharmaceutical model.)  If the Obama administration is serious, then, about treating marijuana as medicine – a goal long held by much of the law reform movement – it could ironically have the effect of reversing facts on the ground rather than driving them.

— Sam Kamin

Vicente Sederberg Professor of Marijuana Law and Policy, Sturm College of Law, University of Denver

It would be wise to consider middle-ground options

Much of the cannabis debate in the United States focuses on two options: Prohibition or the “regulate marijuana like alcohol” approach. This is frustrating. Since 20% of cannabis users—your daily and near-daily users—account for 80% of total cannabis consumption, for-profit companies have strong incentives to create and maintain a large stock of heavy users. I also expect that over time the for-profit industry and its lobbyists will fight against regulation and taxation.

Fortunately, for jurisdictions contemplating alternatives to prohibiting cannabis supply, there are a number of middle-ground options ranging from home production to a government monopoly to a non-profit/for-benefit model.

Since no one knows how legalization is going to play out, I wish there was more discussion about taking an incremental approach to cannabis reform. Jumping from prohibition to a for-profit model is a risky approach that will be very difficult to reverse. It seems reasonable that cautious jurisdictions would explore middle-ground options and see how they work before committing to commercialization based on the U.S. alcohol model. Indeed, jurisdictions could pass a middle-ground option with a sunset clause which would give them the opportunity after a set amount of time to pass a law to either continue with that alternative or try something else.

— Beau Kilmer

Co-director of the RAND Drug Policy Research Center and coauthor of the recently revised book Marijuana Legalization: What Everyone Needs to Know.

Cannabis policy: reform and race

What has been the actual effect of marijuana reforms on racial disparities in the criminal justice system? Racial minorities are arrested and imprisoned at higher rates than are whites, and these disparities are commonly attributed at least in part to the nation’s strict drug laws. Because marijuana is involved in a large share of criminal cases, many proponents of marijuana reform have suggested that legalizing the drug will lessen racial disparities.

But what has actually happened in the wake of marijuana reforms? Have reforms reduced the total number of people being arrested or imprisoned? And more to the point, have reforms narrowed the racial disparities in arrest and imprisonment rates? It is possible, after all, that police have found other crimes to charge now that they can no longer arrest individuals for (some) marijuana offenses—there is certainly no shortage of petty to serious offenses that remain on the law books and which are commonly violated. In other words, marijuana reforms may do no more than alter the names of the crimes being cited for arrest and imprisonment, but may not necessarily reduce the overall number of arrests and imprisonments. It’s a gloomy thought, I know, but it may prove naïve to expect marijuana legalization to reduce racial disparities, at least without also reforming other aspects of the criminal justice system (e.g., police training).

We are already more than three years into the bold experiment that Colorado and Washington state launched (and roughly 20 years into the medical marijuana experiment that California launched), but we are still largely ignorant of the actual impacts these reforms have had on the criminal justice system. My hope is that will soon change – that researchers will tackle this important issue—and that the optimistic forecasts surrounding reforms will prove well founded.

— Robert A. Mikos

Robert A. Mikos, Professor of Law, is the author of many scholarly articles and a forthcoming textbook analyzing marijuana law and policy.

Government guardrails to improve marijuana policy

On marijuana, everyone wants to talk about states’ rights—but they should be talking about federal guardrails. Without federal oversight, there would be no way to ensure legalizing states take into consideration important federal interests, like drug-free kids and roads. Not all state laws are equal, and the federal government should be able to distinguish, for example, between the 6 states that currently have open container laws prohibiting all marijuana consumption in cars and the 17 that don’t. Politically speaking, “states’ rights” is a non-starter message for most Democrats, and for the sizable “marijuana middle,” it’s a completely hands-off approach that goes too far.

Instead, Congress should establish federal guardrails by passing a safe haven law allowing states with effective regulatory systems to get a waiver from federal prohibition. In those states, market participants could operate without fear of prosecution, banks could serve marijuana businesses, and state governments would be free of preemption threats. States are the laboratories of democracy on marijuana—but they shouldn’t have to do it blind. We should use what we know about laws that are working (and those that aren’t) to guide states in the right direction and ensure legalization proceeds as safely and successfully as possible.

Sarah Trumble

Senior Policy Counsel for Social Policy & Politics, Third Way