After legalization is enacted by voters in several more states, the next big challenge will come when the U.S. Congress decides to consider nationwide policies and laws to regulate cannabis for all adults.
There will be some who argue that this is an issue that should continue to be left to individual states to decide; certainly that will become the safe position for many politicians. There will be three camps—those against any legalization at all, those who want to leave it up to the states and those forward-looking leaders who realize a national policy is essential.
A national policy is necessary for several reasons. First, as more and more states legalize cannabis, the issue of interstate commerce grows in importance. Second, as legal cannabis (whether restricted to medical use or not) becomes the norm, rather than the exception, a national prohibition policy will continue to deteriorate into irrelevance and ineffectiveness. Third, some consistent regulatory standards will be required to balance economic development of this new industry with public health, consumer protection and other matters of public interest. And fourth, the federal government will want to take advantage of a new source of tax revenue.
There is another reason a national policy is needed, one that will matter more to marijuana users than public officials—and that is that marijuana users in every state should have the right to grow, use and trade legal marijuana without being subject to criminal sanctions.
Laws are complicated by the necessity of detail. Policy, on the other hand, is a more generalized matter. Yes, the details of how policy gets transformed into law are important, especially when interest groups lobby a legislature to seek advantage. With that in mind, what aspects of a policy for national legalization are the most important to marijuana consumers?
The starting point is that last issue raised above—legalization for all adults and any minor that needs marijuana for medical use. (That is, nothing should prevent young patients from using cannabis products for medical use under the supervision of their parents and doctors, such as CBD products currently used to treat seizures in young children.)
Here are some essential provisions of national legislation to legalize marijuana.
- No state or locality should be able to ban the cultivation, trade or use of marijuana by adults. However, such activity should be subject to reasonable federal, state and local regulations.
- A federal excise tax should be established on the sale of marijuana over a specified quantity, with some provisions made to recognize non-commercial, personal cultivation, use and informal distribution of marijuana within small networks and/or cooperatives.
- A national age-limit should be established for the non-medical possession and use of cannabis. There will be an interesting debate as to what this age-limit will be. Some will argue that it should be 21, just as with alcohol. Others will argue for 18, the threshold of adulthood, and this position will be further justified by the fact that marijuana use is demonstrably safer than alcohol use. However, one of the justifications for the 21-year age limit on alcohol sales and use concern the likelihood that legal users will share the drug with underage users. Many believe that it is better for public health and safety to have the drinking age at 21 because it is less likely those 21 and older will share alcohol with younger teenagers. In other words, if the drinking age was 18, this would provide more access to alcohol to those 17, 16 and younger than a drinking age of 21. The same argument could be used to argue that an age limit of 21 for marijuana use is necessary to reduce teenage access from older friends.
- Federal standards should be devised regarding packaging and labeling (especially with respect to potency and purity), advertising, legal liability to protect manufacturers and distributors regarding the misuse and abuse of cannabis by consumers, and safeguards to protect medical users from discrimination with respect to employment and job security.
These are four general requirements that are needed to make a national legalization policy fair and effective. Legalization for all adults; a fair national excise tax with exemptions for non-commercial and personal cultivation; a national age-limit; and uniform regulatory standards with respect to packaging, legal liability, advertising and protections against employment discrimination against medical users.
Within this general framework, states should be able to implement their own taxes and regulatory provisions and decide how much discretion they will grant to localities. State and local regulations could concern such things as market structure, licensing standards regarding the technical expertise required for industry-related skills, additional taxes and zoning issues.
It would be wonderful if enacting marijuana legalization on a national scale were this simple. It won’t be.
Creating and passing laws to nationalize marijuana throughout the United States will be a complex process and one of the great political battles in the near future. But this is why marijuana consumers, as well as the activists and advocacy organizations that represent them, need to start thinking about the general principles needed to make sure that legalization serves their interests, rather than those of industry and/or government.
Legalization for all means just that. Not only should all Americans have access to legal marijuana, but marijuana legalization must serve all Americans and not just those who benefit from it in terms of profit and/or taxes.
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