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Commentaries
consistent with recommendations of the industry, the relevant regulations require that: ‘A Retail Marijuana Establishment shall not utilize television (or radio, or print) advertising unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the audience for the program (publication’s readership) on which the advertising is to air is reasonably expected to be under the age of 21’ [[6], p. 108]. Although there are restrictions on physical advertising under the Washington model [7], requirements regarding advertising in print and electronic media appear to be missing. We should not be surprised that the marijuana industry would lobby for treatment by the regulatory authority that would maximize its capacity to make money in a new, legal, recreational cannabis market. However, we should be concerned that regulatory authorities would adopt the voluntary standard of the Alcohol Industry with regard to marketing of this newly legal drug. Another fascinating aspect of the three models will be price. In Uruguay the head of the National Drugs Board, Julio Calzada, has been quoted as saying that the price of cannabis through pharmacies has been set at US$1 per gram, ‘to snatch the market away from the drug traffickers’ [8], whereas under the Washington scheme the average price at retail is estimated to be US$12 per gram before the application of a 25% excise tax [9], making it US$15 per gram. In Colorado the retail price will be set by the market, but Colorado regulators are embarking upon a survey of marijuana retailers to determine an average market rate on which to apply to grower-to-seller transfers in order to apply excise tax [10]. With contrasting models in Uruguay versus the Colorado and Washington schemes, there will be much to learn from the first 10 years of legal cannabis markets. One wonders whether the second decade will see the triumph of public health over private profit. Declaration of interests
4.
5.
6.
7.
8.
9.
10.
355
-real-drug-czar-20130606 (accessed 27 July 2013). (Archived at http://www.webcitation.org/6MSy7St39 on 8 January 2014). Babor T., Caetano R., Casswell S., Edwards G., Giesbrecht N., Graham K. et al. Alcohol: No Ordinary Commodity—Research and Public Policy. Oxford, UK: Oxford University Press; 2010. Wodak A. It’s time to tax. Of Substance 2013; 11: 10– 12. Available at: http://www.ofsubstance.org.au/images/ archive/pdf/OfSubstance_July_2013pdf (accessed 2 July 2013). (Archived at http://www.webcitation.org/ 6MSyVGMDl on 8 January 2014). Colorado Department of Revenue Medical Marijuana Enforcement Division (MMED). Permanent Rules Related to the Colorado Retail Marijuana Code. Denver, CO: Department of Revenue; 9 September 2013. Available at: http://www .colorado.gov/cs/Satellite?blobcol=urldata&blobheader= application%2Fpdf&blobkey=id&blobtable=MungoBlobs &blobwhere=1251883847085&ssbinary=true) (accessed 28 November 2013). (Archived at http://www.webcitation .org/6MSynTr5Z on 8 January 2014). Washington State Liquor Control Board. Chapter 314–55 WAC Marijuana Licenses, Application Process, Requirements, and Reporting. Olympia: Washington State Liquor Control Board; 2013. Available at: http://lcb.wa.gov/marijuana/ initiative_502_proposed_rules (accessed 3 December 2013). (Archived at http://www.webcitation.org/6MSzDbBi3 on 8 January 2014). Goni U. Uruguay sets price of legalised cannabis at $1 a gram. Guardian 23 October 2013. Available at: http:// www.theguardian.com/world/2013/oct/22/uruguay-legal -cannabis-1-dollar-gram (accessed 3 December 2013). (Archived at http://www.webcitation.org/6MSzVRewI on 8 January 2014). Washington State Liquor Control Board. FAQs on I-502. Olympia: Washington State Liquor Control Board. 2013. Available at: http://lcb.wa.gov/marijuana/faqs_i-502 (accessed 3 December 2013). (Archived at http://www .webcitation.org/6MSzmOgry on 8 January 2014). Ingold J. Colorado regulators want to know: How much does marijuana cost? Denver Post 14 November 2013. Available at: http://www.denverpost.com/marijuana/ ci_24523519/colorado-regulators-want-know-how-much -does-marijuana# (accessed 3 November 2013). (Archived at http://www.webcitation.org/6MT0CnbhM on 8 January 2014).
None declared. SIMON LENTON
National Drug Research Institute, Faculty of Health Sciences, Curtin University, Perth, Western Australia, Australia. E-mail: [email protected] References 1. Room R., Fischer B., Hall W., Lenton S., Reuter P. Cannabis Policy: Moving Beyond Stalemate. New York: Oxford University Press; 2010. 2. Room R. Legalizing a market for cannabis for pleasure: Colorado, Washington, Uruguay and beyond. Addiction 2014; 109: 345–51. 3. Dickinson T. Ethan Nadelmann: the real drug czar. Rolling Stone 6 June 2013. Available at: http://www .rollingstone.com/culture/news/ethan-nadelmann-the © 2014 Society for the Study of Addiction
TREATIES (PROBABLY) NOT AN IMPEDIMENT TO ‘LEGAL’ CANNABIS IN WASHINGTON AND COLORADO Voters in two states, Colorado and Washington, passed ballot initiatives in 2013 that made legal the cultivation, sale and recreational use of marijuana (with provisions for regulation and taxation to be determined). Marijuana remains illegal—a Schedule I controlled substance— under federal law. The tension between state and federal laws remains unresolved, in both principle and practice. Room [1] criticizes the designated regulatory agencies in Washington and Colorado (and similarly Uruguay, which legalized marijuana in December 2013) for ‘losing sight of the public health agenda’, as relatively little Addiction, 109, 352–359
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Commentaries
public-health language has entered into the debate. However, the agencies tasked with implementing statelevel legalization in Washington (the Liquor Control Board) and Colorado (the Department of Revenue) do not have public health as their mandate. It is fair to say that failing to address public-health concerns is a missed opportunity, but the two initiatives were not passed as public-health measures. The agencies are executing narrowly what the initiatives called upon them to do. Room raises the challenges that Washington and Colorado present for international drug treaties, noting that legal non-medical markets ‘clearly contravene the 1961 and 1988 drug conventions’ [emphasis added]. The author mistakenly conflates the states of Washington and Colorado with the country of Uruguay: Uruguay is a party to the international drug treaties; the states of Washington and Colorado are not. That ‘treaties “are superior to state law” ’ follows from the Supremacy Clause of the Constitution, which prohibits states from preventing the federal government from enforcing federal law that contradicts state law; indeed, federal lawenforcement agencies continue to act, selectively, against medical marijuana operators who are in compliance with their respective states’ laws. The Constitution does not, however, allow the federal government to compel the states to enforce federal law, nor do federal laws automatically pre-empt discordant state laws (pre-emption requires the finding of a ‘positive conflict’ between state and Federal law, to which courts have been disinclined in drug-law cases). In our own research, we surveyed more than a dozen leading scholars on the mutual implications of state-level legalization and the international drug-control regime. Whether the Single Convention requires federal preemption is not evident from a plain reading, and is much disputed. The International Narcotics Control Board (INCB), empowered with keeping the drug treaties and long opposed to drug legalization, has expressed its concern about marijuana legalization in Washington and Colorado, advocating in its most recent annual report that ‘the Government of the United States . . . take necessary measures to ensure full compliance with the international drug control treaties in its entire territory’. In December 2012 Attorney General Holder affirmed that changes in state laws had no bearing on the status of marijuana under federal law; the INCB President called Holder’s statement ‘good but insufficient’; but most constitutional and international law scholars maintain that the Conventions do not bind member states with federal systems of government to over-ride legalization in their constituent political units, no matter that the spirit of the treaties does.1
Should it be determined that the United States is in contravention of the Single Convention, and should it seek a remedy, the several options that Room lays out are all reasonable—as are many others, some of which Room has proposed in previous papers. However, mere concerns about treaty obligations are not likely to compel the federal government to act against its other competing interests (including public opinion), although these obligations might be appealed to if they are consistent with the government’s preferred course of action. For that matter, the drug-treaty regime is barely enforceable; Bolivia suffered no lasting harm from its denunciation and re-accession, despite the INCB’s objections and the European Union’s threats of retaliation, and charges from abroad of hypocrisy or applying double standards have not been particularly effective in obliging the United States to abide by some less-ambiguous treaty obligations. The apparent purpose of Room’s paper is to argue that international drug treaties are outdated, that marijuana legalization compels their revision and that this occasion creates an opportunity for scheduling alcohol (which appears to be the matter with which Room is most concerned). Whatever the merits of scheduling alcohol, it has little to do with the matters at hand in Colorado and Washington. We agree with Room that the treaties are obsolete and sorely in need of revision with regard to marijuana, but the events in Washington and Colorado do not compel the US government to agitate for such change. Declaration of interests The authors were part of the BOTEC team advising the Washington State Liquor Control Board on regulations implementing the Washington marijuana-legalization initiative. ANGELA HAWKEN & JONATHAN KULICK
School of Public Policy, Pepperdine University, 24255 Pacific Coast Highway, Malibu, CA 90265, USA. E-mail: [email protected] Reference 1. Room R. Legalizing a market for cannabis for pleasure: Colorado, Washington, Uruguay and beyond. Addiction 2014; 109: 345–51.
SOME CRITICAL ISSUES IN CANNABIS POLICY REFORM The paper by Robin Room on ‘Legalizing a market for cannabis for pleasure’ [1] is a good starting-point for a
1
And, in some instances, the letter: The Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) requires each party to establish criminal penalties for possession of drugs prohibited under the Single Convention for recreational use, ‘Subject to its constitutional principles and the basic concepts of its legal system’.
© 2014 Society for the Study of Addiction
Addiction, 109, 352–359
This document is a scanned copy of a printed document. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material.
Commentaries
consistent with recommendations of the industry, the relevant regulations require that: ‘A Retail Marijuana Establishment shall not utilize television (or radio, or print) advertising unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the audience for the program (publication’s readership) on which the advertising is to air is reasonably expected to be under the age of 21’ [[6], p. 108]. Although there are restrictions on physical advertising under the Washington model [7], requirements regarding advertising in print and electronic media appear to be missing. We should not be surprised that the marijuana industry would lobby for treatment by the regulatory authority that would maximize its capacity to make money in a new, legal, recreational cannabis market. However, we should be concerned that regulatory authorities would adopt the voluntary standard of the Alcohol Industry with regard to marketing of this newly legal drug. Another fascinating aspect of the three models will be price. In Uruguay the head of the National Drugs Board, Julio Calzada, has been quoted as saying that the price of cannabis through pharmacies has been set at US$1 per gram, ‘to snatch the market away from the drug traffickers’ [8], whereas under the Washington scheme the average price at retail is estimated to be US$12 per gram before the application of a 25% excise tax [9], making it US$15 per gram. In Colorado the retail price will be set by the market, but Colorado regulators are embarking upon a survey of marijuana retailers to determine an average market rate on which to apply to grower-to-seller transfers in order to apply excise tax [10]. With contrasting models in Uruguay versus the Colorado and Washington schemes, there will be much to learn from the first 10 years of legal cannabis markets. One wonders whether the second decade will see the triumph of public health over private profit. Declaration of interests
4.
5.
6.
7.
8.
9.
10.
355
-real-drug-czar-20130606 (accessed 27 July 2013). (Archived at http://www.webcitation.org/6MSy7St39 on 8 January 2014). Babor T., Caetano R., Casswell S., Edwards G., Giesbrecht N., Graham K. et al. Alcohol: No Ordinary Commodity—Research and Public Policy. Oxford, UK: Oxford University Press; 2010. Wodak A. It’s time to tax. Of Substance 2013; 11: 10– 12. Available at: http://www.ofsubstance.org.au/images/ archive/pdf/OfSubstance_July_2013pdf (accessed 2 July 2013). (Archived at http://www.webcitation.org/ 6MSyVGMDl on 8 January 2014). Colorado Department of Revenue Medical Marijuana Enforcement Division (MMED). Permanent Rules Related to the Colorado Retail Marijuana Code. Denver, CO: Department of Revenue; 9 September 2013. Available at: http://www .colorado.gov/cs/Satellite?blobcol=urldata&blobheader= application%2Fpdf&blobkey=id&blobtable=MungoBlobs &blobwhere=1251883847085&ssbinary=true) (accessed 28 November 2013). (Archived at http://www.webcitation .org/6MSynTr5Z on 8 January 2014). Washington State Liquor Control Board. Chapter 314–55 WAC Marijuana Licenses, Application Process, Requirements, and Reporting. Olympia: Washington State Liquor Control Board; 2013. Available at: http://lcb.wa.gov/marijuana/ initiative_502_proposed_rules (accessed 3 December 2013). (Archived at http://www.webcitation.org/6MSzDbBi3 on 8 January 2014). Goni U. Uruguay sets price of legalised cannabis at $1 a gram. Guardian 23 October 2013. Available at: http:// www.theguardian.com/world/2013/oct/22/uruguay-legal -cannabis-1-dollar-gram (accessed 3 December 2013). (Archived at http://www.webcitation.org/6MSzVRewI on 8 January 2014). Washington State Liquor Control Board. FAQs on I-502. Olympia: Washington State Liquor Control Board. 2013. Available at: http://lcb.wa.gov/marijuana/faqs_i-502 (accessed 3 December 2013). (Archived at http://www .webcitation.org/6MSzmOgry on 8 January 2014). Ingold J. Colorado regulators want to know: How much does marijuana cost? Denver Post 14 November 2013. Available at: http://www.denverpost.com/marijuana/ ci_24523519/colorado-regulators-want-know-how-much -does-marijuana# (accessed 3 November 2013). (Archived at http://www.webcitation.org/6MT0CnbhM on 8 January 2014).
None declared. SIMON LENTON
National Drug Research Institute, Faculty of Health Sciences, Curtin University, Perth, Western Australia, Australia. E-mail: [email protected] References 1. Room R., Fischer B., Hall W., Lenton S., Reuter P. Cannabis Policy: Moving Beyond Stalemate. New York: Oxford University Press; 2010. 2. Room R. Legalizing a market for cannabis for pleasure: Colorado, Washington, Uruguay and beyond. Addiction 2014; 109: 345–51. 3. Dickinson T. Ethan Nadelmann: the real drug czar. Rolling Stone 6 June 2013. Available at: http://www .rollingstone.com/culture/news/ethan-nadelmann-the © 2014 Society for the Study of Addiction
TREATIES (PROBABLY) NOT AN IMPEDIMENT TO ‘LEGAL’ CANNABIS IN WASHINGTON AND COLORADO Voters in two states, Colorado and Washington, passed ballot initiatives in 2013 that made legal the cultivation, sale and recreational use of marijuana (with provisions for regulation and taxation to be determined). Marijuana remains illegal—a Schedule I controlled substance— under federal law. The tension between state and federal laws remains unresolved, in both principle and practice. Room [1] criticizes the designated regulatory agencies in Washington and Colorado (and similarly Uruguay, which legalized marijuana in December 2013) for ‘losing sight of the public health agenda’, as relatively little Addiction, 109, 352–359
bs_bs_banner
356
Commentaries
public-health language has entered into the debate. However, the agencies tasked with implementing statelevel legalization in Washington (the Liquor Control Board) and Colorado (the Department of Revenue) do not have public health as their mandate. It is fair to say that failing to address public-health concerns is a missed opportunity, but the two initiatives were not passed as public-health measures. The agencies are executing narrowly what the initiatives called upon them to do. Room raises the challenges that Washington and Colorado present for international drug treaties, noting that legal non-medical markets ‘clearly contravene the 1961 and 1988 drug conventions’ [emphasis added]. The author mistakenly conflates the states of Washington and Colorado with the country of Uruguay: Uruguay is a party to the international drug treaties; the states of Washington and Colorado are not. That ‘treaties “are superior to state law” ’ follows from the Supremacy Clause of the Constitution, which prohibits states from preventing the federal government from enforcing federal law that contradicts state law; indeed, federal lawenforcement agencies continue to act, selectively, against medical marijuana operators who are in compliance with their respective states’ laws. The Constitution does not, however, allow the federal government to compel the states to enforce federal law, nor do federal laws automatically pre-empt discordant state laws (pre-emption requires the finding of a ‘positive conflict’ between state and Federal law, to which courts have been disinclined in drug-law cases). In our own research, we surveyed more than a dozen leading scholars on the mutual implications of state-level legalization and the international drug-control regime. Whether the Single Convention requires federal preemption is not evident from a plain reading, and is much disputed. The International Narcotics Control Board (INCB), empowered with keeping the drug treaties and long opposed to drug legalization, has expressed its concern about marijuana legalization in Washington and Colorado, advocating in its most recent annual report that ‘the Government of the United States . . . take necessary measures to ensure full compliance with the international drug control treaties in its entire territory’. In December 2012 Attorney General Holder affirmed that changes in state laws had no bearing on the status of marijuana under federal law; the INCB President called Holder’s statement ‘good but insufficient’; but most constitutional and international law scholars maintain that the Conventions do not bind member states with federal systems of government to over-ride legalization in their constituent political units, no matter that the spirit of the treaties does.1
Should it be determined that the United States is in contravention of the Single Convention, and should it seek a remedy, the several options that Room lays out are all reasonable—as are many others, some of which Room has proposed in previous papers. However, mere concerns about treaty obligations are not likely to compel the federal government to act against its other competing interests (including public opinion), although these obligations might be appealed to if they are consistent with the government’s preferred course of action. For that matter, the drug-treaty regime is barely enforceable; Bolivia suffered no lasting harm from its denunciation and re-accession, despite the INCB’s objections and the European Union’s threats of retaliation, and charges from abroad of hypocrisy or applying double standards have not been particularly effective in obliging the United States to abide by some less-ambiguous treaty obligations. The apparent purpose of Room’s paper is to argue that international drug treaties are outdated, that marijuana legalization compels their revision and that this occasion creates an opportunity for scheduling alcohol (which appears to be the matter with which Room is most concerned). Whatever the merits of scheduling alcohol, it has little to do with the matters at hand in Colorado and Washington. We agree with Room that the treaties are obsolete and sorely in need of revision with regard to marijuana, but the events in Washington and Colorado do not compel the US government to agitate for such change. Declaration of interests The authors were part of the BOTEC team advising the Washington State Liquor Control Board on regulations implementing the Washington marijuana-legalization initiative. ANGELA HAWKEN & JONATHAN KULICK
School of Public Policy, Pepperdine University, 24255 Pacific Coast Highway, Malibu, CA 90265, USA. E-mail: [email protected] Reference 1. Room R. Legalizing a market for cannabis for pleasure: Colorado, Washington, Uruguay and beyond. Addiction 2014; 109: 345–51.
SOME CRITICAL ISSUES IN CANNABIS POLICY REFORM The paper by Robin Room on ‘Legalizing a market for cannabis for pleasure’ [1] is a good starting-point for a
1
And, in some instances, the letter: The Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) requires each party to establish criminal penalties for possession of drugs prohibited under the Single Convention for recreational use, ‘Subject to its constitutional principles and the basic concepts of its legal system’.
© 2014 Society for the Study of Addiction
Addiction, 109, 352–359
This document is a scanned copy of a printed document. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material.
