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Kleiman, State Laboratories, and Advertising for Addicts

March 4, 2014

Mark Kleiman has an extensive piece in Washington Monthly: How Not to Make a Hash Out of Cannabis Legalization: Leaving it to the states is a recipe for disaster.

As usual, with Mark, it’s a mix of some very good material and some unsupported nonsense that is just there to support his personal nanny-state preferences for public policy.

First, the good.

The undeniable gains from legalization consist mostly of getting rid of the damage done by prohibition. (Indeed, as E. J. Dionne and William Galston have pointed out, polling suggests that support for legalization is driven more by discontent with prohibition than by enthusiasm for pot.) Right now, Americans spend about $35 billion a year on illegal cannabis. That money goes untaxed; the people working in the industry aren’t gaining legitimate job experience or getting Social Security credit, and some of them spend time behind bars and wind up with felony criminal records. About 650,000 users a year get arrested for possession, something much more likely to happen to a black user than a white one.

We also spend about $1 billion annually in public money keeping roughly 40,000 growers and dealers behind bars at any one time. That’s a small chunk of the incarceration problem, but it represents a lot of money and a lot of suffering. The enforcement effort, including the use of “dynamic entry” raids, imposes additional costs in money, liberty, police-community conflict, and, occasionally, lives. Cannabis dealing and enforcement don’t contribute much to drug-related violence in the United States, but they make up a noticeable part of Mexico’s problems.

Another gain from legalization would be to move the millions of Americans whose crimes begin and end with using illegal cannabis from the wrong side of the law to the right one, bringing an array of benefits to them and their communities in the form of a healthier relationship with the legal and political systems. Current cannabis users, and the millions of others who might choose to start using cannabis if the drug became legal, would also enjoy an increase in personal liberty and be able to pursue, without the fear of legal consequences, what is for most of them a harmless source of pleasure, comfort, relaxation, sociability, healing, creativity, or inspiration. For those people, legalization would also bring with it all the ordinary gains consumers derive from open competition: lower prices, easier access, and a wider range of available products and means of administration, held to quality standards the illicit market can’t enforce.

And he goes on to also mention public revenue from legalization and so forth. This is a pretty outstanding list of valuable benefits that would come from legalization and kudos to Mark for presenting them so clearly. This is good stuff.

Where we first get into his personal bias wheelhouse is in the issue of states leading the way.

The state-by-state approach has generated some happy talk from both advocates and some neutral observers; Justice Louis Brandeis’s praise for states as the “laboratories of democracy” has been widely quoted. […]

But letting legalization unfold state by state, with the federal government a mostly helpless bystander, risks creating a monstrosity; Dr. Frankenstein also had a laboratory.

Really? That’s where you decided to go with the laboratories of democracy? Dr. Frankenstein? As I tweeted earlier today, “What a bizarre and juvenile statement.”

It’s like saying “Illinois is considering building a chemical plant? Think of the risks; my son had a chemistry set and he practically blew up the garage.”

Yes, Dr. Frankenstein had a laboratory. How does that conceivably compare to the extensively state-regulated marijuana businesses we’ve seen in every single state that has legalized medical or recreational marijuana? Did Frankenstein have building inspectors, a medical review board, or zoning regulations to deal with?

Are there potential risks with the state model? Certainly. That’s part of any research. But conjuring up monsters isn’t an appropriate way to lead a discussion on it.

As more and more states begin to legalize marijuana over the next few years, the cannabis industry will begin to get richer—and that means it will start to wield considerably more political power, not only over the states but over national policy, too.

That’s how we could get locked into a bad system in which the primary downside of legalizing pot—increased drug abuse, especially by minors—will be greater than it needs to be, and the benefits, including tax revenues, smaller than they could be.

Sure. It could happen. Look, I’d be fine with a non-profit system, or a state-run marijuana store, or any other model as long as it provides legal access to a good variety of marijuana products for consenting adults.

But the federal government, quite frankly, has to really earn a lot in order to have any credibility in wanting to oversee marijuana legalization.

Legalization isn’t happening at the state level because states didn’t want the federal government to do it. Legalization is happening at the state level because there was no other choice. The federal government was simply not doing its job, and instead was stonewalling to try to prevent the necessary systems from being developed, even going so far as to systematically lie to the public and to block research.

Now that, through enormous work and sacrifice by ordinary people, legalization appears to be inevitable, Mark’s suggestion that “We can do better than that, but only if Congress takes action-and soon” in order for the federal government to control how legalization occurs, seems a bit late.

To be blunt, I say, “fuck the federal government.” Yes, I’d love to have the federal government step in and do it right and come up with a good national legalization approach, but they’re not to be trusted. They’ve clearly shown they are unwilling to do what’s necessary or right when it comes to drug policy unless they are dragged there by the people, the states, or the courts (and the courts haven’t been very willing to go up against the feds in drug policy either, so that leaves it to the people and the states).

And while it’s nice to have Kleiman and the other Academics of Drug Policy supporting some kind of legalization publicly now, as a group they haven’t really been an active part of the solution either. Transform, over in the UK, was putting out After the War on Drugs: Blueprint for Regulation, whereas our own academics at RAND were saying:

Nor do we explore the merits and demerits of legalizing drugs, even though legalization is perhaps the most prominent and hotly debated topic in drug policy. Our analysis takes current policy as its starting point, and the idea of repealing the nation’s drug laws has no serious support within either the Democratic or Republican party. Moreover, because legalization is untested, any prediction of its effects would be highly speculative.

More recently, Transform put out How to Regulate Cannabis: A Practical Guide while our academics published a book pointing out the uncertainties of things we don’t know.

And of course, Mark harps on one of his big points — his concern with commercialization.

What’s needed is federal legislation requiring states that legalize cannabis to structure their pot markets such that they won’t get captured by commercial interests.

What he claims bothers him the most about commercialization of marijuana distribution is a very questionable assumption:

Cannabis consumption, like alcohol consumption, follows the so-called 80/20 rule (sometimes called “Pareto’s Law”): 20 percent of the users account for 80 percent of the volume. So from the perspective of cannabis vendors, drug abuse isn’t the problem; it’s the target demographic. Since we can expect the legal cannabis industry to be financially dependent on dependent consumers, we can also expect that the industry’s marketing practices and lobbying agenda will be dedicated to creating and sustaining problem drug use patterns.

There are a number of problems with this. First, Pareto’s Law is a general approach to looking at business trends, and it doesn’t mean that 80% of all marijuana sales will be part of problematic use, despite the inference often given by Mark, et al.

But the thing that really gets me is the point, made over and over again by Mark (and picked up by the “Big Marijuana” idiots) that commercial businesses will make their profits by marketing to problematic users and by marketing to create problematic users.

I really don’t see the evidence to support this.

When I marketed theatre, you know the one group I didn’t spend much money or effort attempting to sway? Theatre-goers. They were my captive audience – all I had to do is announce what I was doing and they would come.

Marketing is primarily about brand awareness, brand loyalty, and, in some cases, introducing the benefits of a product to new customers. It’s not about feeding or growing dependencies. That happens separate from marketing.

Sure, if marketing causes an increase in the overall number of users, and you assume that the same percentage of those new users will become dependent as in the original class, then marketing could lead to dependency indirectly. But that assumption is flat-out contradicted by evidence and common sense, since prohibition laws, to the extent that they deter at all, are more likely to deter casual non-problematic use than problematic use.

I know that it’s popular to claim that marketing is used to cause dependency, but there’s really very little evidence to support that claim.

Let’s take a look at alcohol — one of the areas that the “Big Marijuana” folks are particularly fond of using as a model for why we should be concerned about commercial advertising of marijuana products.

According to the “10th Special Report to the U.S. Congress on Alcohol and Health, Highlights from Current Research” from the Secretary of Health and Human Services.

In general, experimental studies based in laboratory settings provide little consistent evidence that alcohol advertising influences people’s drinking behaviors or beliefs about alcohol and its effects (Kohn and Smart 1984; Kohn et al. 1984; Lipsitz 1993; Slater et al. 1997; Sobell et al. 1986). In addition, econometric studies of market data have produced mixed results, with most showing no significant relationship between advertising and overall consumption levels (Fisher and Cook 1995; Gius 1996; Goel and Morey 1995; Nelson and Moran 1995).

This really does suggest that it’s more about brand advertising than “drink alcohol to excess” advertising. Those who have a drinking problem don’t need to be told by women in bikinis to drink.

Just as with my theatre patrons, even though the regulars may have provided me with 80% of my ticket sales, the bulk of my marketing efforts always went after the ones that wouldn’t be coming without me convincing them. With beer, it’s about convincing you to buy Budweiser instead of Miller. With pot, it’ll first be about informing you that you can buy it and where, then it’ll be about developing brand loyalty (why you should buy from this store instead of another one, or this strain instead of another one…) and, if we’re lucky, there will be an additional advertising thrust to convince people to consume pot instead of alcohol (substitution advertising). But there’s no effective marketing strategy to go after or create dependencies, even if those decencies end up profiting the business.

All this is just a part of the “commercial business is always bad” meme. Again, if you want to promote a non-profit or government model, fine. Hey, how about that state laboratories thing? Convince a state to legalize with a non-profit or state-run approach. We’ll see how it works.

I remember the state-operated liquor store approach from when I lived in Iowa. It had its pros and cons. One of the pros was one year when there was a world-wide shortage of a particular spirit — but not in Iowa, because as a state they had such huge buying power that they were able to get their supply when commercial liquor distributors could not. Hmmm, probably not an argument that helps Mark, is it?

Mark Kleiman seems so convinced that without extremely heavy-handed interference by government, there will be unacceptable levels of individuals whose lives are ruined by pot. It’s just not clear that that’s true.

A monster of completely unknown danger is not being stitched together in dark laboratory by Dr. Frankenstein only to be released to a cruel and intolerant world.

We’re legalizing cannabis.

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Pete Guither is the editor of



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