How the legalized pot industry could change under Trump
If we knew then what we’re learning now about its dangers to health, perhaps the 24 states which have legalized recreational marijuana would not have rushed to do so. What was historically sold to users as harmless and even healthful turns out to be associated with conditions such as Cannabis Hyperemesis Syndrome (uncontrollable vomiting), marijuana use disorder (aka addiction leading to “negative impact on life and health”); and even the onset of schizophrenia, especially among young men.
Thomas McLellan, deputy “drug czar” in the Obama Administration, notes that “the great majority of the cannabis related problems affect those 12-25, which means the problems will have longer duration.”
But here we are. Even as some states (including Florida, North and South Dakota, in the November election) have resisted legalization, there’s no going back. Even as cannabis remains unlawful under federal law, it has become the basis of a $43 billion industry (with sales of legal weed expected to hit $700 million this year in New York State alone).
Yet in contrast to alcohol — to which pot advocates often compare it — or to tobacco, cannabis products do not carry standardized health warnings or easily-understood potency measures. Because the federal government — which still legally considers cannabis a dangerous “controlled substance” — plays no role in its regulation, pot and related “edibles” are regulated by a patchwork of state rules. The time has come to bring order to this chaos, as we have with post-Prohibition alcohol and tobacco: strong standardized health warning labels, easily-understood and standardized potency measures, and taxation not to increase state or federal revenues but to discourage the use of pot altogether.
Every package of cigarettes sold in America carries strong and standardized health warnings, including “smoking causes lung cancer, heart disease, emphysema.” Alcoholic beverage containers are all labeled for risks to pregnancy. In contrast, state health warnings for cannabis range wildly. In California, a label must state “this product can expose you to marijuana smoke, which is known to the state of California to cause cancer, birth defects, and other reproductive harm.” Yet in neighboring Oregon, all that’s required is a label warning that pot is “For use only by adults 21 and older. Keep out of reach of children.” New York State’s Cannabis Control Board’s warnings are much less specific—“smoking or vaping is hazardous to health”; “and is as concerned about dogs and cats as kids, warning: “Keep out of reach of children and pets.”
The same regulatory crazy-quilt applies to the potency of the drug — the extent to which a legal product contains THC, marijuana’s intoxicating chemical. Most states require a label to show how many milligrams of the chemical per ounce a “flower” product contains. But states vary as to how high a percentage they accept. In Massachusetts, that standard is just 5 mg. But 13 states, including California, set that standard at 10mg of THC.
More concentrated but still legal products can contain far higher THC percentages. “Blue Cookies” sold at an Upper East Side retailer are labeled at 20.9%. What’s more, one wonders whether the typical consumer knows how to interpret such a figure—in the same way we understand that a beer with 8% alcohol is stronger than Bud Lite (4.2%). One would have to check the Colorado Cannabis website to learn that “a single 10 mg serving of THC will likely affect your ability to drive, bike or do other activities, especially for occasional consumers.” In Oregon, cannabis edibles may contain up 50 mg of THC.
As with tobacco, the federal Food and Drug Administration should be setting product standards and the Surgeon General should issue a standard health warning — across the country. Anything else favors the growth of “big Pot,” à la Big Tobacco. This flies in the face of the romantic idea that small growers will revitalize Upstate New York, for instance — an artifact of the fact that cannabis laws currently prohibit interstate shipment and pot sold legally should be grown in that state.
The Trump Administration will face a decision should it want to take steps to discourage cannabis use: it would first have to drop the drug’s being included among the official schedule of harder drugs. Democrats have pushed such a proposal through their Cannabis Administration and Opportunity Act. The upside of such a strategy: the chance for more extensive study and standardized national health warnings. The alternative: taking steps to limit the existing state markets —which is hard to imagine in the face of explosive pot consumption in states where it is already legal. Just among seniors, for instance, pot use has surged from 11% in 2009 to 32% in 2019, according to a federal survey.
But the adoption of some federal standards would still mean that cannabis regulation — and how it is best enforced — would remain under the discretion of state and local authorities, closest to their communities. This is as it is with alcohol; as per the National Alcohol Control Commission, “Across the United States, there are hundreds of localities where the purchase of alcohol is completely or partially prohibited.” Indeed, in states, including New York and California, where cannabis is legal, localities may choose to “opt out” of permitting its sale. Close to half of New York’s 1,520 municipalities have done so.
For those jurisdictions where the sale of cannabis products is permitted, there will remain key approaches to limiting its sales to adults, avoiding concentrations of outlets in any one neighborhood, and, indeed, to diminishing its overall consumption.
Paul Samuels, a member of the expert advisory panel for the Center for Substance Abuse and Treatment, pushes for “special emphasis on taking steps to discourage underage use, which is of course the most dangerous from a health perspective.” He emphasizes education for young people and enforcement by sellers at the point of sale — and suspending or revoking the licenses of retailers who fail to comply, as is the case with liquor stores. That means sending in undercover law enforcement agents — and increasing their number.
It also means cracking down on unlicensed, black market cannabis sales — even if that means a criminal record for those involved in such sales — as had been the case before legalization. The black market is clearly extensive; to date, New York state has padlocked 415 illegal smoke shops and confiscated 27,000 pounds of illegal pot.
Squeezing the black market also means rolling back ill-advised laws, such as New York’s, permitting up to six home cannabis plants per adult. Although the law prohibits selling home-grown weed, it’s hard to enforce. It should no more be encouraged than countenancing Appalachian moonshine is.
What’s more, assuming authorities can get the black market under control — no easy task — it will then be time to sharply increase taxes on cannabis products — not to raise state revenues but to discourage use. Tobacco taxes provide a model. According to the American Lung Association, every 10% increase in the price of cigarettes reduces consumption by about 4% among adults and about 7% among youth.
Thanks to the nationwide “tobacco settlement” that provides funds to state governments from tobacco firms for their role in driving health care costs, our airwaves are suffused with images of dying lung cancer patients gasping for breath and expressing regret for their choice. The same could be done for cannabis, starting with parents who have lost children to drug use that started with pot. Monies from the national opioid settlement, which pharmaceutical and distribution firms have been forced to pay to state and local governments, can provide the funding.
Finally but crucially, there remains no accepted standard for “driving while impaired” — as with alcohol-related driving under the influence. Legalization has outpaced technology here. As per the National Council of State Legislatures, “Driving under the influence of drugs (DUID) appears to be a growing factor in impaired-driving crashes.” Yet, notes the group there is a “lack of an agreed-upon limit to determine impairment.”
For his part, Donald Trump has signaled that significant change may come from Washington. He has used his Truth Social platform to back Florida’s failed ballot pot legalization question. But, he added, when voters back legalization, “it should be done correctly” — including ensuring that we do not smell marijuana everywhere we go, like we do in many of the Democrat run Cities.”
Crucially, he has signaled an openness to “rescheduling” pot to a less dangerous federal designation—to open the door to further research on its effects, specifically to “focus on research to unlock the medical uses of marijuana to a Schedule 3 drug.” A question he and the nation will face: if those effects turn out to be worse than anticipated, what will we do?
It was Bill Clinton who said, of abortion, that our goal should be for it to be “safe, legal and rare.” We’ve made recreational cannabis widely legal — but it’s not at all clear that it’s safe and we’ve taken steps to make it less rare. These are mistakes that post-legalization regulation must correct.
Howard Husock is a senior fellow in domestic policy at the American Enterprise Institute.
