Sorry, But Cannabis Legalization Means Regulation, Not ‘Do As You Please’

Johnny comes up with a great recipe to make a soft drink at home that happens to be very similar to Coca-Cola. He decides to bottle it and start selling it out of his garage.

He’s not licensed as a retailer or paying taxes; his product is not safely certified and no one can confirm whether the bottles he’s using have been sterilized. But people still love his Coke alternative – it’s delicious and, Johnny says, it’s all-natural. But alas, it’s not available at Walmart.

What do you think happens next? 

In a country where a woman feels justified in calling the cops on an 8-year-old girl for selling water without a permit, I’m pretty sure you can guess: Johnny’s success will be short-lived.

Now, think of Advil, a burger, or even tomatoes. Commerce is always regulated by the state. And weed is no different. (If you ask me, I’d say grow your own when laws permit, as long as it’s for personal use only. Selling this homegrown weed, however, is a completely different can of worms I’d advise not opening).

What Does Legalization Even Mean?

For many, legalization spells the end of government interference with people’s choices. A history of marijuana prohibition, stigma, and counterculture has cemented the binary narrative of “cannabis users,” or “civil society,” vs. “the cannabis industry” and “state regulations.” 

“From this perspective, legalization would mean the abolition of controls over cannabis, a formula that’s hard to disagree with – in a natural state, or ideal ‘first moment’ of humanity,” explains Nicolás José Rodríguez, a Ph.D. candidate focused on cannabis at The New School. “Fundamental to this vision is the idea of magical anarchy as a social system documented by ethnographers in the late 1980s in the Emerald Triangle.”

However, this “one love” narrative of cannabis omits the fact that many of the first cannabis growers who arrived at Humboldt and Trinity County in the 1960s and 70s were choked by Reaganomics and turned to producing and selling cannabis due to an undeniable fact of life: people pay more for cannabis than lettuce or tomatoes. People needed to sell cannabis to make a living – not that it’s any different nowadays. But now that it’s legal, there are regulations as to how that can be done.

“Oftentimes we edit these facts in our narratives of why the plant should be free, and, at the same time, we obliterate the possibility of making a living and being successful at producing cannabis. This moral operation creates the illusion that there is only one way to legalize cannabis,” adds Rodríguez. “It’s a logic that excludes the possibility of creating new wealth in communities and localities affected by economic crises.” 

But worry not, there’s a middle point, says Mara Gordon, long-time cannabis advocate and founder of Aunt Zelda’s.

“There is a tremendous amount of gray area between free-for-all cannabis with no regulation, and the exclusionary capitalist model that is unfolding in the U.S. today. While individuals should have the right to make and consume products at home with their loved ones, once the medicine is sold – or even given – to someone outside their home, there is a responsibility to know it is safe and appropriate.”

And she adds, “We are not allowed to practice medicine or dispense pharmaceuticals without a license. What makes people think they can manufacture medicine without having safety oversight and licenses?”

Of course, this is not cheap. But most would agree that, when it comes to medicines or consumer packaged goods, it’s necessary to ensure consumer and patient safety.

An Inescapable Truth

In the view of lawyer Bob Hoban of Clark Hill, “for too long, cannabis activists have lived under the likely delusion that cannabis legalization simply means that it is free and legal and open. But unfortunately, that is not the modern world that we live in. This is especially true in a polarized society that has gotten far too comfortable with government oversight and regulation of everything.”

As in the dawn of the industry, modern cannabis is interwoven in a world of politics, interests and inequalities that shape public opinion and stimulate incremental regulatory changes that provide opportunities for those in the industry. 

So, yes, legalization means regulation. It means the government will no longer tell you that you can’t consume, grow, or sell cannabis. Instead, it will now tell you how and when you can. 

“The state apparatus that drove the largest military operation in the U.S., the CAMP program, against cannabis growers in California in the 1980s and 1990s, declared cannabis essential 30 years later,” notes Rodríguez. “The beast is mutating. Helicopters are no longer needed to control the cannabis trade when there are norms, protocols and systems that track, trace and tax cannabis from seed to shelf. It’s a profound change in governance.”

Once strictly punitive approaches become more flexible, the shift allows certain legal exceptions wherein cannabis can be grown under certain rules that can, however, be exclusionary in nature.

It is true that, very often, regulations do not contemplate the needs of cannabis growers and consumers automatically. They indicate that the system is moving its parts to create a little niche where cannabis can grow and it is within those regulations that organizations and producers can carve a place for themselves in this booming industry. 

“We could argue that legalization under current conditions is the state and the corporations approaching under sheep’s clothing,” says Rodríguez.

But, he asks, what about the instances and debates this imperfect legalization brings for organizations, institutions and associations? Are we missing a chance to organize fairer cannabis production setups within the current imperfect framework? If so, what can we do about it?

Challenging Our Notions

This notion of cannabis legalization implying a libertarian approach to its production and sale has made its way into policy debates across the U.S. and the world for the longest time. The question is always the same: Along the finite spectrum of legal/regulated policy options, which model should we support? And which one will ultimately prevail?

“The model where everything is simply legal and free of regulation is not likely in the modern world,” assures Hoban. “The model where cannabis is regulated far closer to tobacco than alcohol symbolizes limited regulation, but more freedom. The alcohol model [implies] less freedom and more regulation, but is available in vast majority of jurisdictions with an age limit ‘gatekeeper.’”

There’s also the now-recognized cannabis dispensary model, which many feel is too regulated and sends the wrong message to society about the safety of cannabis. 

“This ‘spectrum of regulatory’ options will rarely, if ever, land on a system where cannabis [access] is simply free and easy with no restrictions,” Hoban continues.

That is not the modern world we live in, for better or for worse.

“It is this delusion that often pits the ‘suits’ or ‘Wall Street weed’ against the ‘OGs,’ or more long-held interests in the activist movement,” Hoban says. “But many people simply do not have the relevant experience or insider expertise to understand how these policy debates (concerning the level of regulation) unfold, and the impact of the stakeholders on both sides of the policy issue.”

“Heck, the industry lobbyists have generally had a very poor understanding of the impact of CSA [the DEA’s Controlled Substances Act] rescheduling versus descheduling until recently, and the practical implications thereof,” he goes on. “That said, the expectations of a commercial, regulated industry that was spawned from an activist movement are complicated to say the least and these expectations (and the associated reality thereof) demonstrate the conflicted industry in which we work.”

Time To Get Real About Legalization

American cooperatives represent a type of association where profits, losses, and investments are shared equally. Decision-making is also collective and allows the equal distribution of resources. Labor and knowledge are equally distributed to stimulate innovation and cooperation as well.

Local seals and protocols present another alternative to “escape” from regulatory frameworks that can choke entrepreneurship.

“These need a whole lot of lobbying at the local and state level but eventually will allow small producers to grow cannabis under certain branding that recognizes local diversity,” notes Rodríguez.

At a personal, subjective, or cultural level, the challenge seems to be to overcome the moral ballast we impose on ourselves with such concepts like one that poses that profiting from weed is immoral.

It is okay to profit from weed, but that process will be regulated somehow.

Private citizens making money was rarely part of the pro-legalization discourse. People tend to talk about providing easy access to patients, keeping peaceful cannabis consumers out of prison, generating tax revenue while avoiding the unnecessary expenditure of public resources, curbing the use of addictive pharmaceutical drugs, stopping the violence and racism enabled by prohibition, and even helping the environment. But one seldom hears people saying, “I want cannabis to be legalized to become rich.”

This was never a promise. But now, it seems to be a demand.

What exactly did we expect?

America is the epitome of capitalism. If not big money, who do you think would end up owning and profiting from the industry?

What’s more, in an industry that can fit into one of four distinct existing policy lanes – (1) The FDA-approved pharma lane; (2) Wellness and nutritional products from the cannabis plant (typically nonintoxicating); (3) OTC marijuana (e.g. dispensaries); and (4) industrial uses – who will control each vertical?

“When you view the plant as just that – a plant, albeit a magical plant – you very quickly understand that it can be regulated according to its uses.  And those uses tend to fit into one of the aforementioned four policy lanes,” says Hoban.

“Creating something new in public policy rarely works, and it is far more expedient and ‘understandable’ to make cultivation of the plant easier, with its uses regulated in a manner consistent with other products/uses that are contained in that lane. And the last time I checked, there was unfortunately not a policy lane for free, easy, and unregulated activity concerning these materials. Good or bad… it’s simply a fact.”

Is It Political? Nonpartisan? Or Both?

“Too many groups lobbied their local governments with promises of economic windfalls if cannabis would be legalized. The states and municipalities heard them – and believed them – adding multiple layers of taxation to the already pricey medicine,” says Mara Gordon. “Now, many of these same groups are bemoaning the unfair taxes and regulations as business killers.”

In her view, the companies that made the decision to follow the regulations and keep high levels of quality have fallen by the wayside, one by one, as those with return on investment and profit margins as the main drivers are succeeding by driving quality down while gaining market share.”

Has cannabis just become another capitalist opportunity with a grassroots face? – she asks. “I would, sadly, have to conclude the answer is yes.”

But this is not really about the left or the right and their policy ideals, it is more about utilizing existing regulatory constructs so that policymakers and bureaucrats can understand it in advance.

“We need to sneak [the concept of personal freedom rather than liberty] past both parties, frankly,” ends Hoban, in what seems like a reference to Castaneda’s “Don Juan,” who challenges what we think we believe and tricks us into learning.

What do you think is the answer here? More regulation? Less regulation? Or economic incentives to help those with shallower pockets to comply with the current regulations?

I’ll be reading your thoughts on social: @JavierHasse.