Prohibition is not the answer

Embracing regulations should help the legalization movement continue onward

Rules and regulations exist for the betterment of society.

I know that sounds like naïve optimism, particularly in today’s day and age when many laws seem like constructs to protect the rich and powerful, when the rule of law is flouted even by the highest offices and when the concept of justice is politicized and battered beyond recognition. But that core principle should guide any rulemaking process as we attempt, each day, to be a better nation than we were the day before.

Like everybody involved in cannabis, I’ve paid close attention to the news of the vaping-related illnesses and subsequent deaths that have happened throughout the United States. And I’ve followed along as government regulators have leapt into action, imposing a variety of bans and desperately trying to halt the outbreak. As a monthly magazine, it’s been impossible to cover the minutia of every action; things have changed so quickly and so often that even regulators don’t seem to have a firm grasp on what they’re proposing. This has created a great deal of confusion as to how businesses can remain compliant.

The issue is not that regulators are overreacting — 34 known deaths at the time of publication warrants a strong, decisive response — it’s that knee-jerk reactions and outright bans may have little to no effect on the problem at hand. Some responses could even make the crisis worse — sending consumers back to the illicit market — or have a ripple effect of unintended consequences. One of the worst examples of these is the blanket ban pushed forward by Massachusetts Governor Charlie Baker, which even included outlawing flower vaporizers, despite none of the illnesses thus far being directly linked to flower consumption.

If we’ve learned anything from the War on Drugs, as well as Prohibition decades earlier, it’s that the societal damage caused by outright bans is greater than that of the product being banned (and with some irony, I’m writing this commentary on the 100-year anniversary of the Volstead Act becoming law).

That concept has been a cornerstone of every state legalization initiative of the adult-use era. And while this might be a general oversimplification of the lessons of Prohibition — the alcohol ban did, after all, have some success at reducing consumption — there’s a very real parallel between the cannabis and booze industries.

In light of these illnesses and deaths, it’s even more important than ever to move forward with legalization, not backward. Of all the industry executives and thought leaders speaking out on the subject of the vape crisis, I thought Supreme Cannabis Company founder John Fowler had one of the most level-headed responses: “With the recent news around the risks of vaping it’s important to remember the solution is not more prohibition. The solution is better regulation. It’s not the fundamental elements of cannabis causing harm,” Fowler wrote via Twitter.

Those who have used the vape-related deaths as a reason to oppose legalizing marijuana continue to ignore the fundamental truth of the situation: Whether it’s legal or not, cannabis will still be available in every community across the country.

People want cannabis vape cartridges, and they’re going to buy them, whether from the legal market or elsewhere. Like the days of bathtub gin, there’s no telling what health risks might come with products manufactured on the illicit market, which doesn’t test for pesticides, heavy metals, biological contaminants and doesn’t check IDs with each sale. There’s also the increased possibility of explosions if home extractions return to fashion.

The only way to ensure the safety of consumers is to legalize and regulate.

So far, most of the cannabis-related vaping illnesses have been associated with products that came from the illicit market. To give credit where it’s due, Leafly has done a tremendous job of covering vaping illness story since the first cases were reported, including an in-depth look at the shady vendors in Los Angeles selling flavorings, thickeners and cutting agents by the jug, bucket and barrel. Although we don’t yet know how prevalent these additives are within the legal, regulated market, it seems evident that they’re rampant in the illicit market.

“Regulation, not prohibition, is the answer here,” University of Denver law professor Sam Kamin told Leafly. “Black market, unregulated nicotine and cannabis products are the worst threat here.”

Although Dr. Anne Schuchat of the Centers for Disease Control said there were signs “that the trajectory may be leveling off or even declining,” it’s hard to know whether that is due to the effectiveness of the bans or the potential for life-threatening illness scaring people into abandoning vape products. Probably a combination of both.

Many people have referred to this crisis a wake-up call for the cannabis industry. Hopefully it’s a wake-up call to individual states and regulatory agencies, as well. The time to act is now. For states that have already legalized cannabis for either medicinal or recreational use, it’s time to adopt testing regulations that truly ensure safe products for consumers. And this goes beyond the additives that have taken center stage as of late; pesticide use remains a major concern for consumers and a black mark on the states that have failed to regulate it properly. It’s hard to imagine Washington state successfully implementing any sort of ban on vape additives or requirement for vitamin E testing when the state hasn’t successfully mandated something as basic as pesticide testing. Regulations have to be more than just lip service.

Rather than reinventing the wheel for every new legalization initiative, states need to collaborate with one another and work toward a more unified set of regulations that would benefit the industry and, more importantly, consumers. In my opinion, the U.S. Food and Drug Administration dropped the ball in not stepping up to provide some regulatory oversight when it became clear the course of legalization was moving forward.

This also brings me around to the subject of taxation. States that get greedy with tax revenue and see cannabis as an easy way to balance their budget — California, I’m looking at you — only allow the black market to persist. It’s not surprising that the Golden State’s illicit operators are thriving at a time when prices in the legal market are sky-high and law enforcement has generally stopped targeting marijuana crimes. The legal market cannot overtake the illicit market without reasonable prices and convenient access, no matter how much testing and safety can be promoted as a reason to buy from state-licensed shops.

In a lot of way, writing this commentary felt too much like a classic case of preaching to the choir. Of course cannabis professionals are going to support legalization (though operators in limited license states like Florida and New York are probably doing what they can to maintain their dominant position), and of course they’re going to promote the legal industry over the black market.

But the legal industry is not without culpability. Ultimately, it’s the industry operators who must be responsible at every step of the supply chain. If these thickening agents are prevalent in black market products, I have no doubt that some manufacturers — either out of greed or ignorance — have been using them too.

The vape crisis is exactly the type of situation that could topple the entire legalization movement. I understand that no industry ever advocates for stricter regulations. But cannabis professionals should embrace regulation, because right now that’s the foundation allowing them to profit from selling a Schedule I controlled substance.

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