Cannabis is at a crossroads.
It’s become clear over the past few decades there are two main paths for how weed might exist in American life, and a cavalcade of recent legislation, ballot initiatives, polling, and campaigns suggest the country may soon have to choose one over the other. One sees the drug largely as a medicinal product, and the other as something people use for fun.
The first of these paths would have the Drug Enforcement Agency (DEA) rescheduling the drug; it’s a plan Democratic frontrunner Joe Biden supports. Were it up to him, the government would move weed from its Schedule I classification (which equates it with other drugs like heroin, and considers it to currently have no “accepted medical use and a high potential for abuse”) to Schedule II. There, it would fall under the explicit purview and strict controls of the Food and Drug Administration (FDA), and state-level recreational markets across the country could literally be destroyed.
“A medical model implies a very discrete product with specific doses, and it would be very tightly controlled,” said Leo Beletsky, a professor of law and health sciences at Northeastern University. “For better or for worse, and people say this is sometimes over-medicalized, but if you’re going to be making claims that ‘x’ has ‘y’ effect on this condition, it has to be incredibly precise. Those products aren’t going to be, like, ‘Here’s some indica, go smoke it.’ Instead, it’d probably be a pill, or a nebulizer, or a tincture, or whatever.”
The second approach would be a complete descheduling, which would in effect legalize recreational cannabis—a push that more aggressive pro-pot activists and other Democratic presidential candidates, like Bernie Sanders and Cory Booker, favor. The idea would likely be to leave all the current state markets, where this has already effectively happened at the local level, untouched.
Of course, most 2020 Democratic contenders are calling for some form of legalization or at least decriminalization, and almost all of their stances hinge on righting social injustices of the decades-long war on drugs. But even the Trump administration seems to be lightening up as of late: Last week, pressured by a court order, the DEA announced it might finally begin approving applications for institutions to study cannabis for research purposes—an initial step that some advocates say could lead to rescheduling, but should, in the very least, allow more clinical trials to be performed. (At the moment, the University of Mississippi, through an often-criticized monopolistic deal with the National Institute on Drug Abuse, or NIDA, is the only place allowed to cultivate its own cannabis.)
“Should it be legal or illegal?” asked Sam Kamin, a professor of marijuana law and policy at the University of Denver. “That’s just the first of 100 questions.”
While all of this has yet to add up to much (it’s mainly policy promises, or an agency’s assertion that it’ll at least begin the process of starting something), cannabis almost certainly has to be addressed federally after 2020, especially if the U.S. elects a new president. And with more institutions set to research the drug, there will probably be more clarity on how it might or might not be medically beneficial to ailing patients, which remains contested territory even as states have raced to loosen pot laws by any means necessary.
“In many ways, the dual architecture for drug regulation—the FDA and the DEA—is part of the reason why our system is so messed up,” said Beletsky. He mentioned the FDA’s handling of e-cigarettes, what he called a “complete debacle,” as an example of how the agency is not accustomed to monitoring a recreational market.
And, as Kamin has pointed out, there is no legal framework in which a drug, or even a commodity, is used both medically and recreationally.
“Who is going to visit a doctor and pay a $35 copay to get cannabis, when they can go to the store and get it for $10?” asked Jonathan Caulkins, a professor at Carnegie Mellon University’s Heinz College who has also served as co-director of the RAND Corporation’s Drug Policy Research Center. He added, “I see the most likely scenario as a for-profit model—something similar to Big Tobacco.”
This is the strategy often promoted by drug policy–reform activists, like the Drug Policy Alliance (DPA), a progressive coalition that “believes marijuana should be removed from the criminal justice system and regulated like alcohol and tobacco.”
It’s not necessarily a binary choice. Because the other aspect of federal legalization, of course, is that we have no idea what it would truly be like, since we’ve never lived in a country with that sort of system. For his part, the late Mark A.R. Kleiman, one of the most prominent drug policy experts in the U.S. and a former VICE contributor, warned against a full-blown commercial legalization (i.e. something close to Big Tobacco or alcohol) because he predicted it would profit off of excess use. Instead, he urged a middle ground, a system that was neither commercial legalization nor classic prohibition.
Which brings us back to whether the feds ever really have to weigh in here at all.
“Do they even have to make such a delineation?” Michael Collins, DPA’s director of national affairs, asked. “Broadly speaking,” he continued, “our position has long been the federal government should get out of states’ way.”
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