The Empire Strikes Back: The New Attack on Marijuana Law Reform



It’s been a good couple of years for marijuana law reform, particularly with the advances of state-level medical marijuana laws and the emergence of local dispensaries in several states. The attention and public support received by Prop 19 in California has also stimulated national discussion on marijuana legalization, even though the measure was narrowly defeated. There’s a good case to be made by advocates and reformers that these and other developments indicate significant progress in the long fight to end marijuana prohibition.


Nonetheless, significant opposition to marijuana law reform still exists throughout the country, and powerful opposition at that. Significant, powerful, and influential opposition has, is, and will be a formidable obstacle to marijuana’s legalization. And it’s not going to go away any time soon. Indeed, they will be mounting a counter-attack over the next few years in response to the reform movement’s recent gains.


It’s already underway.


At the local level it is manifest in attempts to narrow the scope of state medical marijuana laws though restrictive regulations, zoning laws, and local ordinances banning local dispensaries. 


Nationally it is apparent in columns and op-ed pieces that seek to convey reasonable and commonsense opposition to marijuana’s legalization.


At the local level one of the common themes of the counterattack is that medical marijuana laws are being exploited by profiteers and recreational users. Medical marijuana suppliers are supposed to be non-profit enterprises, but instead, the argument goes, they are being used to generate huge profits. Medical marijuana is supposed to be available only to chronically ill individuals, but instead is being made available to just about anyone who can find a sufficient pretext to get a physician’s recommendation. Worse, according to critics, dispensaries attract too much traffic and too many visitors, thus disrupting quiet, peaceful, and tranquil neighborhoods – especially when the customers are viewed as the wrong sort of crowd to be in proximity to schools, shopping areas, and anywhere else the public might discover that patients are really just normal people like everyone else. In other words, there are many attempts now to hide medical marijuana patients from public view. It’s much like old attempts to keep gambling and prostitution in special red-light districts, out of sight, and more easily controlled.


Nationally, the rap on legalization is that while reform may be justified, legalization remains unthinkable and unacceptable. Here the attack falls back on the oldest and most discredited defense of prohibition. Marijuana is a gateway drug, it is argued, bad for adolescents, and legalization would result in increased availability and increased use. Maybe marijuana shouldn’t be classified like heroin under federal law, for example, and jail terms shouldn’t really be overly harsh, but legalization is not the answer. Such arguments ignore the costs of prohibition, including the support of an over-capitalized market, which creates incentives for sales to minors and exacerbates the very problems cited in opposition to legalization.


Lurking beneath the surface of both local and national opposition to reform, though, is a more important and dramatic battle over just who will reap the profits from commercial exploitation of cannabis and its constituent chemicals.


This battle is fast becoming the dominant dynamic in determining the pace and progress of further marijuana law reform.


Did you know that many growers opposed Prop 19 in California? They make a lot of money under the current laws, and believed that legalization in California would destroy their lucrative profits. But individuals who profit from the illegal market are only a small part of the opposition to legalization.


The federal government has long maintained that whatever medical benefits can be provided by the cannabis plant can be more effectively and efficiently provided by pharmaceutical cannabinoid drugs, whether based on natural or synthetic forms of marijuana’s natural ingredients. In the 1980s they argued that the synthetic THC, known chemically as dronabinol and sold under the brand name Marinol, was a sufficient substitute for marijuana. Indeed Marinol has been such a successful product that efforts are underway to authorize the sale of a cheaper generic form of dronabinol. Meanwhile, GW Pharmaceuticals has successfully brought a cannabis extract product to market in Canada and Europe under the brand name Sativex, and is undergoing clinical tests necessary to gain approval to enter the US market. Furthermore research continues on a number of cannabinoid analogs, variations of the active ingredients of the marijuana plant, in hopes of developing other effective and profitable pharmaceutical products.


Opponents of marijuana law reform have learned to live with revisions in criminal penalties, such as decriminalization, and the emergence of restricted access to marijuana for medical patients. Their overall strategy, though, is to make sure such reforms remain marginal changes in the administration of prohibition rather than fundamental changes in national marijuana policy. In other words, they intend to keep a lid on reform until sufficient substitutes are available to address medical use. Then, they believe, there won’t be any need for medical access to marijuana, and medical marijuana reforms can be rolled back and eliminated.


This strategy may not be successful in the long run; experience suggests that it is impossible to create a closed and controlled market for marijuana and/or its constituent chemicals. It’s too easy for small-scale production – known as cultivation – to escape detection and suppression. But this doesn’t mean that the attempts to shut down the market will not continue.


When it comes to medical marijuana the federal government hopes it can pick winners and losers. They want corporate America to win by getting a monopoly on the sale of cannabis-based drugs for medical use; in part because the government believes this will enable them to perpetuate marijuana prohibition in terms of non-medical cultivation and use. Alternately, this suggests that if marijuana prohibition cannot be preserved, they’ll apply the same strategy of picking winners to the overall issue of who produces, sells, and profits from marijuana use. This may also be a futile effort in the long run, for this is a struggle that remains to be fought.


These are interesting and challenging times for advocates of marijuana's legalization, with fresh challenges and new opportunities. This is no time for self-congratulation, though, about the progress that has occurred during the last few years. The empire will strike back, opposition to reform remains formidable and undiscouraged, and there is much to be done to defend recent gains and further advance the cause of legalization. 




Jon Gettman is a long time contributor to HIGH TIMES.  A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues.  On October 8, 2002,  along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law.  This column will track that petition's progress.