State-Level Marijuana Regulation

According to the Controlled Substance Act, marijuana is a Schedule I drug. According to state-level legislation in 11 states, though, marijuana is a “legal” substance for recreational use.

State laws “legalizing” marijuana have been spreading throughout the country since 2012, when Colorado and Washington became the first states to “legalize” recreational marijuana use. As of 2018, 66% of Americans favor marijuana legalization. Top reasons for supporting legal marijuana include medical benefits, “freeing up law enforcement to focus on other types of crimes,” and freedom of choice. 

Deciding whether to “legalize” marijuana is not the only regulatory choice that states must make. Colorado, for example, has regulations detailing how many ounces of marijuana adults can possess, where it can be smoked, and age requirements for possessing, buying, or using it. 

This week’s Saturday Seminar will explore state-level marijuana regulation, discussing what questions state regulators should consider when “legalizing” marijuana within their states. 

Public Health Considerations

• Jane Steinberg and several coauthors survey the public health concerns, existing laws, and ongoing challenges governments face regulating marijuana use and propose recommendations to regulate American marijuana use in the future. The scholars suggest that states legalizing marijuana “amend language regarding prohibition on outdoor cannabis use while retaining strong smoke-free indoor air rules” to better reduce secondhand exposure and discourage youth consumption. 
• In a recent article published in the American Journal of Public Health, Rachel Barry and Stanton Glantz argue that Colorado, Washington, Oregon, and Alaska have not established policy frameworks that “follow public health best practices for tobacco and alcohol control.” By modeling marijuana regulation after alcohol regulation, marijuana regulation in these states has resulted in “similarities across both policy regimes,” the authors argue. For example, the authors argue that both alcohol and marijuana policy considers private industry as a partner, allowing industry to participate in creating the “systems designed to regulate their activities.” Another concern the authors express is the “limited and ineffective controls on advertising and promotion” that are present in both alcohol and marijuana regulatory frameworks. The authors conclude by suggesting that marijuana legislation should “prioritize public health over business interests.” 

Regulatory Designs

• As states begin to allow marijuana usage in various capacities, state and local officials must devise the specific details of marijuana policies. In a 2019 article for The American Journal of Drug and Alcohol Abuse, Carnegie Mellon’s Jonathan Caulkins and the Alberta Health Services’ Michelle Kilborn argue that state and local officials should consider what hours to allow for marijuana sales and whether to establish buffer zones around marijuana retailers. They also recommend that policymakers deliberate on what forms of marijuana to allow for sale, such as for smoking, edibles, vaping oils, or lozenges, given that “the relative risks associated with different routes of administration have not been well researched.”
• When drafting regulations to implement new marijuana laws, “the devil will be in the details.” In an essay for The Regulatory Review, Jordan Wellington draws attention to understudied challenges in regulating cannabis markets. According to Wellington, many of the challenges stem from the federal prohibition of cannabis. For example, federal law prohibits the sale of pesticides that have not been registered or exempted from registration requirements by the U.S. Environmental Protection Agency, but that agency has yet to approve any pesticides for use on cannabis crops. Wellington notes that, despite the hurdles to developing effective regulatory schemes at the state level, “there appears to be a consensus among the populations and authorities in legalization states that regulating cannabis is a substantial improvement over prohibition.” 
• In a UCLA Law Review article, Erwin Chemerinsky of UC Berkeley School of Law and his co-authors argue that the federal government should take a cooperative federalism approach to marijuana regulation. Chemerinsky and his co-authors recommend that the federal government allow states meeting certain criteria to opt out of the Controlled Substances Act’s (CSA) marijuana provisions. In states that choose to opt out of the CSA, state law would exclusively govern marijuana activities. In states that do not opt out, federal law would continue to govern marijuana activities. This proposed solution, Chemerinsky and his co-authors argue, “would allow the states to operate as laboratories of ideas, generating regulatory models that could serve as templates for federal policy.”