“Tax and Regulate” has become the slogan of the marijuana reform movement, but what does it mean? The phrase unpacks to three separate questions: how should marijuana-related activities be taxed, at what rates and by whom; how can access by young people be controlled; and what regulations should be imposed on commerce in marijuana and marijuana products? Each of these questions deserves sober (?!) consideration. This essay will focus only on the third: regulation of commerce in marijuana.
The problems with regulating marijuana spring from three issues: its psychoactivity, its status as an agricultural ingestible product, and its medical use.
Psychoactivity raises concerns about DUI, access by minors (not discussed here), and workplace use. The two major issues of psychoactivity are DUI and drug-testing. In spite of three decades of solid scientific testing showing that marijuana use creates a very small risk, if any, of increased driving dangers, most people equate marijuana-influenced driving with alcohol-impaired driving. The result looks as if most states will enact draconian impaired driving laws imposing criminal liability either on a absolute liability basis or on unrealistically low blood levels (some current ones impose liability on barely perceptible blood levels of non-impairing metabolites that remain in the body long after any impairment has disappeared). Unfortunately, these laws will probably have to be attacked piecemeal in the courts on the grounds that they are arbitrary and totally lacking in scientific basis.
Drug-testing is now rampant, but in jurisdictions with legal marijuana, they too will be subject to attack on the lack of any provable connection with impaired performance. However, businesses are already moving away from these tests because they show no economic return for their costs.
Why should a legal marijuana grower be limited in the size of the crop or be required to have a license? Both of these regulations assume that use will skyrocket and that illegal gangs will continue to be the suppliers and will persist in their violent, illegal methods. Neither of those things happened when other Prohibitions were ended.
Quantity limits are not needed. They spring from fears of escalating demand and widely increased use. However, the accumulated evidence is that removal of legal penalties does not increase use nor does rather drastic changes in price. This evidence comes from those states that have decriminalized or allowed medical marijuana and from foreign jurisdictions like the Netherlands, Portugal, and Italy. Demand will set the limits on both crop size and price. Although some jurisdictions may try to limit the right to grow, increased pressure from more liberal neighbors will soon remove those limits.
Licensing is also based on the idea of criminal growers and the need for background checks. But does anyone care if a potato grower has a non-violent felony record? Retail outlets should be limited no more than those for alcohol or tobacco, and for the same reasons.
Land use regulation will still be needed, but this need is easily met by current zoning and land use powers. However, in this area, like the others discussed above, fear will probably drive early efforts to be too strict; and time and competition will eventually rein them in.
Public consumption should not be regulated, except for smoking. Public objection to sidestream smoke will probably lead to bans on indoor smoking in public places.
Since marijuana is ingested, it will need the same kind of regulation imposed on other edible agricultural products. Production, handling, and storage regulations are necessary to prevent pesticide residue, mold, and chemical contamination. Labels of origin and organic certification could be useful. Prepared consumables containing marijuana-derived ingredients should be labeled for their content and a measuring system is needed to label these products’ potency.
Marijuana botanists have performed brilliantly over the last half century, and their works should be protected and extended. Something like the Plant Patent system to identify and protect the various strains is necessary. A genetic library and bank to collect, identify, and preserve varietals would be extremely useful.
Medical use of herbal marijuana and extracts require even more control. A mandatory labeling should be imposed that requires packaging that lists the major medicinal components of the contents, both by name and by quantity. These labeling criteria will probably expand as research continues into all of the cannabinoids and their synergetic effects.
Both Congress and the state legislatures have their work in front of them even after Prohibition is ended. But the good news is that the more marijuana is integretated into mainstream commerce, the easier the job will be.