Future of Marijuana Industry in America
Sam Kamin is the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver. He has taught at the Sturm College of Law at DU since 1999. Kamin has become one of the nation’s leading experts on the regulation of marijuana; in 2012 he was appointed to Gov. John Hickenlooper’s task force to implement legal recreational marijuana in Colorado and to the ACLU of California’s blue ribbon panel to study marijuana legalization.
Recreational marijuana legalization passed in four states in November, and medical marijuana was legalized in four more. What does that say about the acceptance of the drug nationwide? Will it eventually be legal everywhere?
Marijuana is currently lawful for medical patients in more than half the states, and now eight states, plus the District of Columbia, have made marijuana legal for all adults. It is fairly easy to argue that we have reached a tipping point where the federal prohibition cannot continue. But it is not at all clear what will take its place. Regulation at the federal level may look like the regulations adopted by the various states around the country or may take on an entirely new look. It is important for Congress to be clear about its goals in regulating cannabis and how the rules it enacts will further (or harm) those goals. For example, if the principal goal is revenue generation, that will require one set of regulations—and those regulations may be at odds with the parallel desire to suppress the black market. High tax rates may generate lots of revenue, but they will produce high consumer costs, which might keep the black market thriving.
Overall, how is legalization going in Colorado? What have been the biggest positive and negative effects?
Overall, things have definitely gone better than anyone could have expected. Gov. Hickenlooper, who opposed the passage of Amendment 64 [which legalized recreational marijuana in Colorado], has said as much. Colorado was the first jurisdiction anywhere in the world to attempt to regulate and tax marijuana for adult use. Given that, there have been surprisingly few hiccups. The two biggest concerns have probably been with edibles and public use. Regulations have been needed to specify appropriate serving sizes for marijuana edibles (since it’s easy for neophytes to take too much) and to make it clear that the products contain cannabis (so that children or unwitting adults do not accidentally ingest them).
Some of your research deals with the fact that marijuana is still illegal under federal law, no matter how many states legalize it. What issues does that cause? Is that a sustainable situation?
The status quo is not sustainable. Marijuana was a billion-dollar business in Colorado last year, and almost all of that money was made in cash. Because cannabis remains illegal at the federal level, most banks will not provide services to the industry. This is bad for the industry, but it’s also bad public policy. Regulators are charged with taxing the industry and making sure that its profits go only to authorized stakeholders; this is made much more difficult without the paper trail that banking would provide.
The DEA held off on rescheduling marijuana in 2016—can you explain what that means? How is marijuana scheduled now, and how do you believe it should be rescheduled, if at all? Why did the DEA originally decide to reschedule it, and why was the decision delayed?
Marijuana is listed alongside heroin, LSD and others as a Schedule I drug. That means that it cannot be prescribed by a DEA-licensed doctor. It also means that there are serious criminal and civil penalties for anyone producing, selling or possessing any of these drugs, even if they are in compliance with state law. This is essentially the shadow that hangs over the entire marijuana industry in all the states where marijuana has been “legalized.” If marijuana is rescheduled within the Controlled Substances Act, it will be legal to prescribe the drug and to sell it at a pharmacy, but that could lead to significant disruption in the existing industry. It would probably mean the displacement of all marijuana producers and distributors currently operating in the states, as none of them would be authorized under federal law to produce or sell a controlled substance. It would also almost certainly devastate the current recreational marijuana market. In the same way that Oxycontin cannot be sold (legally) without a prescription, the rescheduling of marijuana would likely bring an end to the recreational selling of marijuana as we know it today.