Since 2012, when California and Washington legalized recreational marijuana, 24 states in addition to the District of Columbia and two U.S. territories have followed suit. The speed of change is a consequence of several factors: a sincere desire to repair some of the devastating effects of the War on Drugs, Big Tobacco’s heavy investment in the cannabis industry along with its lobbying power, and the federal government maintaining severe restrictions on marijuana research. The absence of federal legislation cedes too much to states, leading to hodge podge legislation that poses serious risks.
In the 1960s and 1970s, a moral panic about “dangerous drugs” swept through parts of the United States. The moral panic found immediate amplification in bipartisan political power with the passage of The Federal Comprehensive Drug Abuse Prevention and Control Act in 1970 — now called the Controlled Substances Act.
There are three titles or parts of the CSA. The first title is concerned with the rehabilitation of drug users and gained very little traction. The second two titles have had a devastating and disproportionate effect on Black and brown people, poor people and marginalized people. The second title addresses the registration or classification of particular drugs into five schedules based on medical uses and potential for abuse. The third title concerns the importation and exportation of controlled substances. These very different titles reflect the fact that the CSA melds medicine, public health and criminal justice into an uneasy and unequal union. The Drug Enforcement Agency has the power to schedule a drug while the Health and Human Services may make recommendations.
In 2022, President Biden requested the HHS review the scheduling or classification of cannabis. In conjunction with his request, he pardoned people who had been charged under federal law for possession. The House passed the Marijuana Opportunity Reinvestment and Expungement Act in 2022 that expunges criminal records, reinvests in communities that have been devastated by the War on Drugs and prohibits discrimination against people for cannabis-related activities.
The cannabis industry is growing at an astounding rate as more states legalize medical and recreational cannabis products. In 2022, legal sales totaled $30 billion with an expected $35 billion in 2023. In the absence of any changes in federal legislation and with additional states legalizing, legal sales could top $70 billion by 2030. The tobacco industry has made significant investments in cannabis products. Drawing from an estimated $107 billion in present revenue from tobacco products, Big Tobacco is directing its unrivaled lobbying power to the end of legalizing medical and recreational cannabis.
The cannabis industry is following the marketing book of Big Tobacco, targeting youths with posts on social media. Advertisements shape the perception that cannabis is not only less risky than other drugs, including alcohol, but has salutary benefits, making consumers more likely to use cannabis.
The evidence about harmful effects of more potent cannabis products is growing. Emergency departments have become ground zero for cannabis-related events. There has been a staggering increase of people older than 65. Since 2005, there has been a relative increase of 1,808% in the rate of cannabis-related ED visits. On the younger end of the scale, trips to EDs for children under the age of 6 have increased by 1,375% from 2017 to 2021. This may be a consequence of more potent edibles that resemble candy. People between 15-24 account for most ED visits for cannabis-related events.
With no shared limitations on potency, no agreement on a serving size, no measure of impairment, few research programs investigating new and more potent forms of cannabis, and no clear shared restrictions on production, quality control and distribution, the federal government is abjuring its responsibility and ceding all the power to Big Tobacco and Big Cannabis. Trying to regulate products already on the market is extraordinarily difficult, as we have seen with tobacco. Menthol cigarettes were heavily marketed to Black smokers in the 1960s onward. About 70% of Black smokers prefer menthol cigarettes compared to 30% of white smokers. In 2009, when the Food and Drug Administration assumed power over tobacco, all flavors were banned except menthol. In 2022, the Biden Administration delayed the ban again. Civil rights activists, the ACLU and Big Tobacco charge that the ban targets Black smokers. One of these is not like the others.
The failures to regulate the tobacco industry should be object lessons. Will the federal government heed them? The cannabis/tobacco industry would prefer we don’t understand these lessons, which may explain why there is often a vociferous and effective backlash against anyone who questions the claims that cannabis is harmless and not additive or who advocates for caution and thoughtfulness in cannabis legislation. The reluctance to legalize all forms of marijuana without any limits gets painted as continuing the same moral panic that led to the War on Drugs in the early 1970s. That’s a false equivalence. People can be in favor of descheduling but with restrictions on the potency, production and distribution of cannabis. This needs to be a viable position in ongoing debates about marijuana.
In the absence of federal legislation, the hodge podge legislation between states may only make the problems worse.
Peg O’Connor is a professor of philosophy at Gustavus Adolphus College, a recovering alcoholic and the author of “Life on the Rocks: Finding Meaning in Addiction and Recovery” and “Higher and Friendly Powers: Transforming Addiction and Suffering.”
