The best argument against marijuana legalization

What if Big Marijuana behaves like Big Alcohol and Big Tobacco?

With marijuana legalization now voter-approved in four states, a new major industry is beginning to form around selling legal pot for profit. But as more states consider whether to take on legalization, the rising industry has become the main target for opponents of legal pot.

"If we're not careful, the marijuana industry could quickly become the next Big Tobacco," warns the website for Grass Is Not Greener, a campaign launched by the anti-legalization Smart Approaches to Marijuana (SAM).

There are many, many layers to marijuana laws and legalization. There are still major questions about the risks of teen use, whether marijuana really needs to be rescheduled to allow research into its medical use, and how legalization will ultimately affect rates of drug use.

But groups like SAM appear to have settled on a prominent target in their anti-legalization efforts: the marijuana industry. The big concern is that the drive for profit could encourage inappropriate marketing that leads to increased drug abuse.

The commercialization of pot creates bad incentives for for-profit companies

Kevin Sabet, co-founder of SAM, says his biggest concern with legalization in Colorado and Washington so far "is the rise of a fairly large industry whose only objective is to increase profit." He explained, "Its only way to do that is to increase heavy use and irresponsible use. Remember the alcohol industry, the tobacco industry, the pharmaceutical industry, they don't make a lot of money from the people who consume occasionally or now and again. They're making money from the heavy users."

Mark Kleiman, a drug policy expert at New York University's Marron Institute who supports a much more regulated form of legalization, has consistently pointed to the commercialization of marijuana as one of his primary concerns with the current model of legalization. Marijuana companies' "best customers are the problem users," Kleiman said in a previous interview. "They are an industry with a set of objectives that flatly contradicts public interest."

Indeed, one study of Colorado's pot market, conducted by the Marijuana Policy Group for the Colorado Department of Revenue, found the top 29.9 percent heaviest pot users in the state made up 87.1 percent of demand for the drug. For the marijuana industry, that makes the heaviest users the most lucrative customers.

Sabet argues that the for-profit incentive might also encourage the industry to market unsafe products as long as there's money to be made.

Marijuana-infused edibles, for instance, have turned out to be riskier than many expected, largely because it's much more difficult for a novice user to self-regulate the dose of pot from slow-acting, sometimes shoddily labeled food products.

"I still have not heard a good reason why we need any edibles," Sabet says. "I think it's really difficult to make an argument that you need lemon-flavored gummy bears that have THC in them."

"When they've got something to sell, we'll see how aggressive they get"

But some in the industry have pushed back against regulations attached to the goods. And Kleiman, for his part, says edibles could be properly managed with strong regulations, some of which have been established in Colorado and Washington after several incidents, including Maureen Dowd's infamous New York Times op-ed, led to public outcry. "It may be in the long run that eating it is safer," he said. The high "doesn't come on as fast. And once you have a legal option, you know how much you're taking."

Still, Kleiman said it will be a long time until the full effects of commercialization come to light. Although retail sales have technically been underway in Colorado since January, the recreational industry as a whole still deals in much higher prices than the medical side. Kleiman expects that to come down over time as the recreational industry builds capacity, and then the full effects of commercialization will begin to show.

"We're seeing the expected level of marketing irresponsibility from the vendors, but they don't have much to sell at the moment," Kleiman says. "When they've got something to sell, we'll see how aggressive they get."

States are limited in how they can regulate marijuana legalization

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Sabet acknowledges that if cautious drug policy experts like Kleiman were singlehandedly in charge of setting up a regulatory model for legal marijuana, the concept would be less concerning. But even when Kleiman and others are consulted by states, their hands are somewhat tied by federal law and simplistic ballot initiatives.

Part of the problem may be how states are choosing to legalize marijuana. In Alaska, Colorado, Oregon, and Washington state, voters approved ballot initiatives for legalization. But when advocates put measures on the ballot, they try to keep the language of the initiatives simple to avoid scaring off voters and giving too much leeway to lawmakers who might disagree with what voters choose to do.

Kleiman, who helped Washington state set up its marijuana regulations, says the simplicity of the ballot initiatives makes it difficult to get into the nuance of legalization. If a state is bound by a voter-approved measure to allow private citizens and businesses to sell pot, it becomes much more difficult to set up more elaborate, regulated models of sales.

Lluis Gene/AFP via Getty Images

States, for instance, might have a harder time requiring nonprofits or co-ops to sell marijuana, similar to what's being done in parts of Spain and Uruguay. They also might not be able to set quotas or require users to set their own quotas for how much pot can be bought each month, which is a favorite idea of Kleiman's.

"There's a bunch of stuff you could do," Kleiman said, "but that stuff is hard to do by initiative."

The obvious alternative is state legislatures could pass their own marijuana legalization laws. But with marijuana still a hot-button political issue, not many legislatures are moving in that direction. By Kleiman's count, only liberal Vermont is seriously looking at the possibility of legalizing pot through its state legislature.

Even if state legislatures passed their own legalization legislation, another problem is that federal law limits how much state agencies can involve themselves in the day-to-day management of marijuana shops.

An April report from the RAND Drug Policy Research Center suggested that state governments could monopolize sales and sell marijuana through state-run shops. The report found that states that did this with alcohol kept prices higher, reduced access of alcohol to youth, and reduced overall levels of use.

But, as the report acknowledges, states currently can't take this type of restrictive approach due to federal prohibition. "You can't have state agencies committing federal felonies," Kleiman said. "What I'm worried about is that we're going to get locked into a bad model. When Congress finally legalizes at the national level, the industry is going to be at the table."

Advocates acknowledge the risks of the industry

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As a cautious supporter of legalization, Kleiman readily acknowledges the risks of prohibition. As he describes it, the current model of prohibition is the worst possible outcome, with the current model of legalization following as the second worst.

"Prohibition has costs in term of illicit markets, criminal activity, and enforcement activity, and legalization gets rid of that," Kleiman said. "Within the world of legalization, you can have more or less increase in drug abuse and use by minors. Commercialization is going to maximize the downsides of legalization."

Advocates argue that keeping marijuana illegal in any way leads to worse effects than pot, with its relatively limited health effects, could ever have on society. As they see it, the only major result of prolonged prohibition is a reliable source of revenue for violent drug cartels and gangs that are a much bigger threat around the world than marijuana.

"I care much, much less about preventing commercialization and keeping the trade in the hands of mom and pop growers and away from corporations than I do about ending criminalization and taking the market away from gangs and cartels as soon as possible," Tom Angell of the pro-legalization Marijuana Majority wrote in an email. "That said, I would fight alongside Sabet and anyone else against any industry players who do try to advertise to kids or who would undermine the public health and social justice principles of the movement."

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