The failure of American drug law, particularly marijuana policy, has long been obvious.
Finally, this October, President Biden ordered the Department of Health and Human Services and the attorney general to review what’s known as the “scheduling” status of cannabis. This legal process could lead to federal regulation of sales for recreational use or a national law that requires a prescription for marijuana. Mr. Biden also recently signed a law to ease onerous restrictions on marijuana research, and legislation is pending to allow cannabis businesses, now forced to use cash, to get access to banks.
Reform is much needed, with more than two-thirds of Americans favoring legalizing and regulating recreational use. Nearly half of Americans can or will soon be able to legally buy marijuana to get high in their state, which conflicts with federal law.
The details of new regulation, however, matter enormously. The current law, the Controlled Substances Act, is antiquated: It makes no scientific sense and grew out of legislation that was often driven by racist and anti-immigrant propaganda. While policymakers consider how to regulate marijuana specifically, they also need to rethink how the U.S. government classifies and controls psychoactive substances in general — not just drugs like marijuana and opioids, but also alcohol and tobacco.
The Controlled Substances Act was initially intended to regulate pleasurable substances that are risky. It has five categories, or “schedules,” which are supposed to reflect varying hazard levels. But it is filled with contradictions.
Schedule I, the most restrictive, bans the sale and possession of certain drugs for recreational use and limits their medical use to research. Those drugs include marijuana, heroin and LSD and most other psychedelics — all of which have wildly different risks. Each also has significant medical benefits.
The remaining four schedules put varying restrictions on medications. But some medically permissible drugs are more dangerous and addictive than some illegal substances — and the recreationally legal drugs alcohol and tobacco can be more dangerous than some prohibited ones and are not scheduled at all.
Initially passed in 1970, when Richard Nixon was president and alcohol and tobacco weren’t seen as drugs at all, the Controlled Substances Act needs a complete overhaul.
Consider the differences among marijuana, LSD and heroin, which this law makes equivalent. Research suggests that around a quarter of the people who start using heroin become addicted, a high proportion. However, marijuana addiction rates are much lower, under 10 percent. And LSD addiction is rare, affecting at most a fraction of 1 percent of users.
In terms of other harms, heroin addiction is the deadliest condition in psychiatry. But neither LSD nor marijuana use kills by overdose, and marijuana doesn’t seem to have significant impact on mortality rates (the effects of LSD on life expectancy haven’t been extensively studied). While both LSD and marijuana are associated with psychotic experiences, lasting psychosis is uncommon. And recent research suggests that cannabis and psychedelics could actually treatsome mental illnesses, including addictions.
Meanwhile, the most addictive and deadly drug is unscheduled: Cigarettes hook about two-thirds of people who try them, and kill around half of users. Alcohol — which, unlike marijuana, can cause overdose deaths, also known as alcohol poisoning — also escapes this regulation.
There’s no science to this system. The Controlled Substances Act was an attempt to justify existing legislation. Many laws prohibiting specific drugs had passed by the 1960s, often propelled by bias and propaganda and without consideration of relative risk.
For example, racist ideas about Black men who used cocaine and Chinese men who used opium helped push the 1914 Harrison Narcotics Act, which prohibited nonmedical use. The 1937 law that banned marijuana was fueled by racism against Mexicans and racist fears about Black jazzmen spreading both addiction and seductive music.
David Herzberg, professor of history at the University at Buffalo and author of “White Market Drugs: Big Pharma and the Hidden History of Addiction in America,” said that the Controlled Substances Act was an attempt to rationalize drug policy. “It was housekeeping,” he explained, a type of legislation aimed primarily at streamlining and tidying up existing law.
The act also included an element of reform. It removed draconian mandatory minimum drug sentences that had been imposed in the 1950s and were later recognized as failures. These laws treated the possession and sale of marijuana, cocaine and heroin as equally bad, with mandatory sentences starting at two to five years, and higher for repeat offenses. But in the 1980s, propelled by fear of crime linked to crack cocaine, Congress reversed course and made some sentences even tougher.
The Controlled Substances Act “was built to accommodate competing impulses,” said Joseph Spillane, professor of history at the University of Florida, describing how it was intended to organize regulation and allow for quick bans of newly discovered substances.
It also created a Catch-22. Schedule I drugs are declared to have no medical uses. But studies of possible benefits are not required before prohibition. And once a drug is banned, research is highly restricted. This is why data on medical cannabis is so sparse.
The drug policy expert Mark Kleiman wryly noted that “marijuana breaks law” because of how it bedevils policymakers. Cannabis is simultaneously less risky than most drugs and, historically, a culture war bomb that no politician wants to risk detonating.
Consequently, voters have taken their own stand. Cannabis is already legal or set to become legal for recreational use in 21 states; 37 permit medical use. The industry projects $33 billion in sales for 2022.
Change, however, is tricky. Rescheduling marijuana could upend state regulations by imposing prescription requirements. This could give cannabis to Big Pharma, which is the only industry with the capacity to make and sell Food and Drug Administration-regulated medicine. This approach could also end states’ efforts to repair racial disparities in marijuana enforcement through preferential treatment of small businesses led by people from the communities most harmed.
In contrast, de-scheduling marijuana would leave it federally unregulated, unless Congress passes new legislation. A lack of regulation could lead to Big Marijuana, possibly controlled by alcohol and tobacco companies seeking to reduce competition. This approach, too, could destroy minority-owned businesses.
To prevent this, some in the cannabis industry have proposed creating a new Schedule VI for marijuana, which would leave the question of regulation or prohibition in the hands of each state. Either de-scheduling or creating a schedule that avoids prescription requirements might resolve the issue of marijuana regulation.
But changing marijuana law isn’t enough. Psychedelics are already presenting similar regulatory issues, with some states already legalizing their use. And it’s unrealistic to think that all of the recreational drugs humans will ever use already exist.
Instead, we should consider creating a new, strict pathway for approval for safer substances that have both recreational and medical uses, like psychedelics — or, for example, some new drug with the benefits of alcohol, but less harm. Without such a path, cartels will continue to be the main innovators, introducing new and often-deadly products to millions without testing or quality control.
Better drug law also demands limits on the marketing and advertising of substances including alcohol, tobacco, cannabis and prescription drugs. As the opioid crisis demonstrated, permitting the marketing of addictive substances can be dangerous, whether aimed at doctors or consumers. Lax rules on commercialization are a disaster.
It’s unclear now how the Biden administration will act on marijuana. But in order to effectively regulate pharmaceutical and recreational drugs, we need new ideas.
Maia Szalavitz is a contributing Opinion writer and the author, most recently, of “Undoing Drugs: How Harm Reduction Is Changing the Future of Addiction.”
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