BLOGGER HTML TEMPLATE AS OF 4/15/16 BEFORE REDIRECTION TO WORDPRESS New Amsterdam Psychedelic Law Blog: November 2012

Thursday, November 29, 2012

Discussion of cannabis law at Brooklyn Law School, November 19

The Brooklyn Law School chapter of Students for Sensible Drug Policy hosted me and ACLU lawyer Emma Andersson at its inaugural event, Marijuana Initiatives and Federalism: An Interactive Panel Discussion, on November 19. My thanks go to Adam Scavone, Adam Horowitz and Jacob Englander for inviting me to speak; it was a privilege to participate with Emma. Here is the video.

The New York Daily News recently posted an op-ed dismissing as a fraud the proposed medical cannabis law that has languished in the legislature for a decade as other states roar into the future, leaving New York a bumbling blue state backwater. DN's op-ed essentially and ironically challenged the government to discuss full legalization but it was full of the same decoy arguments, presumably from the DEA playbook, that appear in every statement against a medical cannabis program.

Here is the response I sent to the editor. It didn't get published so I am self-publishing.


To the editor:

Although I commend the Daily News for focusing on the proposed New York
medical marijuana law, your November 26 op-ed "New York must not get
rolled up in sham medical marijuana debate" is disappointing because it
simply recites the standard inaccurate objections asserted by all
opponents of marijuana law reform - even while it proposes a discussion
of full legalization.

For example, the claim that the law will fund the "Mexican Mafia" is a
typical mischaracterization: the law would place the entire supply side
(from cultivation to retail sale) under the control of the State
Department of Health - completely unlike the situation in California and
other early medical marijuana states. As for creating a regulatory
system that would be costly to enforce, the proposed law provides for
sales tax collection. If the Daily News thinks the tax rate would be too
low to cover expenses, what tax rate would be high enough?

The lack of FDA approval is irrelevant. Federal courts have already
ruled that the lack of FDA approval does not mean that there is no
medical use. Further, although the FDA has not granted permission to
market cannabis (that's all FDA approval is) - that is because the
National Institute on Drug Abuse and the DEA have been obstructing an
FDA-compliant clinical trial of marijuana since 2002 by refusing to
provide marijuana to researcher Dr. Donald Abrams in San Francisco.
(Also note that the federal government itself has been giving
out marijuana to patients for decades under its "Compassionate Use"
program - seriously undermining the claim that there is no medical use.)

As for general legalization, the movement for medical use was a direct
reaction to the way that the government has regulated drugs for 100
years. The prohibition of all use of drugs except for medical purposes
forced advocates of more rational policies to fight for the minimum -
recognition of a medical use. Now that we see that close to twenty years
of a regulated medical marijuana market in California has not destroyed
the state, other states are moving on to regulation of the marijuana
market like alcohol.

The Daily News could do a real public service by taking a serious look
at how marijuana law works. If you want to skip over the cautious,
gradual process of introducing a medical use system and instead discuss
how cannabis could be regulated in New York like alcohol or under some even better system, then let's do it.

Noah Potter, Esq.
Author, New Amsterdam Psychedelic Law Blog
Former Chairman of the NYC Bar Association's Committee on Drugs and the
Law

Monday, November 12, 2012

It's not about "legalizing marijuana"

The recent votes in Washington and Colorado are a big deal.

There is one point I wish to make regarding terminology.

I found extremely helpful a publication called "After the War on Drugs: Blueprint for Regulation" by Steve Rolles at the UK's Transform Drug Policy Foundation.  The central concept in this truly innovative document is that of a "regulated market." The name of the game in drug policy reform - which means legal reform - is the creation of a regulated market for psychoactive substances.

All markets are regulated. There are regulated markets for firearms, alcohol, automobiles, candy and spray paint. The practical question is the degree of regulation. There may be regulations on the supply side, regulations on the demand side, both or neither. Some states require background checks to purchase firearms. Many consumer products require disclosure of ingredients. Users of automobiles require pre-licensing by the state before they can use automobiles. All product advertising is regulated the Federal Trade Commission; advertising of pharmaceuticals is also regulated by the FDA. The tobacco industry self-regulates with regard to advertising. Pharmacies are subject to regulations as to their layout - i.e. what products must be locked up "behind the counter" as opposed to stocked on the shelves where the consumers wander about. There are regulations governing establishments that permit onsite consumption of alcohol, i.e. "bars" and "restaurants." In New York the "regulation" of tobacco includes a ban on smoking in public parks. Some states allow sale of liquor only through government stores ("state stores"). The market for rental properties is regulated by affirmative legal obligations on landlords to provide heat and to eradicate vermin.

The point in practice then is that the reforms in cannabis law, whether affirmative defenses to criminal prosecution in "medical marijuana" states or in Washington State the directive to the liquor control board to formulate rules for sale of cannabis, is that we are not talking about legalizing a drug (or, more accurately, a botanical) - we are talking about legalizing a market.

Lawyers know from their first-year contracts class that it is not possible to enforce an illegal contract. As my professor said "no sale of babies!" That is the law that currently governs "drugs" - it is an illegal market and therefore all transactions therein are illegal, except as narrowly permitted under the federal Controlled Substances Act and to varying degrees under state law. Cocaine is not an "illegal drug" - since cocaine is in Schedule II of the CSA, it is the market for cocaine that is illegal except as permitted narrowly by the law (that being a physician's prescription of cocaine - the validity of which the DEA can second-guess). Legal reform would expand the scope of the legal market and allow participants in the market to use the courts to enforce their contracts.

In New York State, the market for cannabis is legal only to the extent that a consumer may possess a small amount of cannabis not in plain view; the market for the cultivation and sale of cannabis, i.e. "the supply side," is illegal. The medical cannabis bill drafted by Assembly Member Richard Gottfried would specify six types of entities that may apply to the state for permission to enter the supply side of the market, i.e. it would legalize a form of supply.

It is a little bit of a word game I am playing here but it is a significant word game: if the question is how to regulate a market, then the task at hand is easy. We are all familiar with regulated markets. There is a regulated market for nuclear power plants and one for medical devices. It is within the scope of possibility to legalize the market for cannabis and other psychedelics.