Marijuana By Any Other Name… is Still MaryJane

Can there be marijuana legalization without commercialization?

Published on July 12, 2013by June H. Kim

Washington State residents aged 21 and over will soon be able to walk into any consumer co-op and purchase up to an ounce of the state’s finest recreational marijuana. State legislators, informed of a potential $1.9 billion dollar tax windfall over the next five years, are likely expecting inaugural crowds somewhere between the opening of a new Chipotle and Black Friday.

But what if nobody shows up?

According to Mark Kleiman, the state appointed Drug Czar, “It is entirely possible that by the time we finish regulating and taxing this product, it’s going to be uncompetitive with what you can get at the collective gardens (where the state’s medical marijuana is grown).”

In the currently proposed commercial system, two licit markets for cannabis will essentially co-exist, albeit on unequal footing. Customers will be able to choose between “medicinal” and “recreational” marijuana, where the former enjoys an established customer base and laissez-faire tax enforcement while the latter is scrambling just to set up basic infrastructure for retail sales.

This impending logjam in the green stream of (potential) state revenue has policymakers scrambling for solutions, but most proposals focus solely on restricting the market for medicinal marijuana. These options only circumvent the underlying issues inherent in a dual market. An alternative solution would be to forgo commercializing cannabis and simply transition medical marijuana from being prescription only to completely over-the-counter.

Marijuana is not a cure for any disease. However, similar to aspirin, marijuana has been shown to be an effective treatment option for a broad range of symptoms associated with both chronic and infectious diseases. Patients have the right to dictate the course of their treatment, and the right to self-medicate should be no different.

There are some notable benefits to transitioning medical marijuana from prescription only to over-the-counter. First, the State can avoid creating a separate licit market that is financially motivated to profit, and profit prolifically at that. Competition with the medicinal market could lead to plummeting prices and thus, increased use. If this is the desired outcome, why not allow all residents to grow marijuana as freely as backyard grass? At least we could stop fretting over security systems and video surveillance.

Additionally, as over-the-counter medications in Washington are subject to sales tax while prescription drugs are exempt, the State can still collect the added revenue it so desperately seeks. While technically not a “prescription” drug, retail sales tax for marijuana operates in a vague legal area with spotty enforcement at best. State recognition of marijuana as a legal, over-the-counter medication could guide in ensuring tax compliance, particularly if this was the only licit cannabis available.

Of course, Federal rescheduling of marijuana from Schedule I (reserved for the most dangerous drugs with no acceptable medical uses) to Schedule II or III (deemed acceptable with a prescription) wouldn’t hurt either.

On the flip side, if medical marijuana is eliminated and the drug is treated as a licit product, it might not be long before the dawn of “big cannabis”. Self-proclaimed pot entrepreneurs have already been mobilizing, seeking to claim early stakes in a burgeoning industry.  Worse still, Phillip Morris and big tobacco are likely salivating at the idea of mass producing spliffs, combining their tobacco with a drug that enjoys favorable public opinion and mass appeal.

If there’s anything that could jumpstart a stagnant market for tobacco, it’d be marijuana.

Extremely cognizant of the perils of creating either a multibillion dollar industry or a state monopoly that “fosters disease” (akin to the state lottery), Kleiman has advocated the use of consumer co-ops as a safe middle ground. However, it was just last year that Washington privatized liquor sales, ending a state monopoly that began shortly after prohibition. Once the profits from commercialized marijuana start flowing, the tide towards a similar measure for cannabis may be inevitable.

Historically, the public health costs associated with commercialized drugs like alcohol and tobacco have been irrefutable. While marijuana is generally regarded as less harmful, like any drug, there is still potential for abuse and dependence. For adolescents, the evidence is even more glaring, with studies linking regular use with maladaptive brain changes and significant developmental deficits. Legalizing the commercial sale of marijuana may exacerbate these harms, potentially by diminishing the perception of risk held among adolescents, increasing their use even further.

Still, Washington State youth can be forgiven for any misconceptions they may hold, as even adults will struggle to distinguish between “medicinal” marijuana and “recreational” cannabis. A simple explanation would be that one is a “drug” with medicinal properties, while the other is a “product” that enhances activities.

In reality, this distinction is in name only. However, by simply labeling marijuana as a product, cannabis derived goods will avoid stricter regulations normally reserved for drugs; including more stringent safety requirements (see the FDA and e-cigarettes). As it stands, commercial cannabis in Washington will be held to some quality and safety standards, but what about cannabis concentrates? Is there a threshold for when a product becomes a drug?

This future fiasco could be nipped in the bud by making cannabis available over-the-counter. Non-commercial cannabis legalization is possible. In Uruguay, a new law will allow pharmacies to sell cannabis over-the-counter (along with allowances for personal plants as well as small consumer co-ops), with the state serving as a “monopoly middleman” between for-profit producers and the pharmacies.

Voters in Washington State (and Colorado) have agreed that the societal benefits of legalizing marijuana outweigh the costs. What’s still to be decided is whether marijuana should be treated as an innocuous drug or as a commercial product. This distinction may seem inconsequential to the typical user, but the precedent set in the west can dictate a generation of policy focused either on responsible use or growing profits.

Edited by Joshua Brooks