Is It Too Late to Stop the Rise of Marijuana, Inc.?

America is on the path to legalization, but as pot becomes a big business, lawmakers aren't yet wrestling with how to regulate it effectively.

A woman displays marijuana products at the Cannabis World Congress and Business Exposition in Los Angeles. (Lucy Nicholson / Reuters)

The marijuana wars are entering a new phase. The first phase, over whether or not to legalize the recreational use of cannabis, is over. The partisans of legalization have won the battle for public opinion. Soon, I suspect, marijuana legalization will be entrenched in federal law. At this point, to fight against legalization is to fight against the inevitable. The only question now is what form America’s legal marijuana markets will take. Will they be dominated by for-profit business enterprises with a vested interest in promoting binge consumption? Or will they be designed to minimize the very real harms caused by cannabis dependence, even if that means minting fewer marijuana millionaires? I fear that the burgeoning cannabis industry will win out—but their victory is not yet assured.

Why am I so convinced that legalization is a fait accompli? In short, the industry’s opponents have proven spectacularly incompetent. In January, the Justice Department issued new guidance on its marijuana enforcement efforts, reversing an Obama-era policy that, in essence, gave state governments wide berth to regulate marijuana policy as they saw fit. Attorney General Jeff Sessions has long opposed marijuana legalization, so this move was not entirely surprising. What Sessions failed to reckon with, however, is that the legalization of medical marijuana in several U.S. states, and the subsequent legalization of marijuana’s recreational use in a handful of others, had already created facts on the ground. He wasn’t just targeting a handful of scofflaws. Rather, he had in his sights a large and growing universe of growers and distributors, who had the sympathetic ear of state and local officials. Nor had the attorney general evinced the slightest concern about the role the criminalization of marijuana had played in alienating millions of Americans from the criminal-justice system, a grave threat to its legitimacy. Had Sessions pursued a more measured approach, with a narrower focus on limiting the role of the profit motive, as the drug-policy researcher Jonathan Caulkins recommended in National Review, he would have been on firmer ground, both substantively and politically. Instead, he stumbled into a battle he had no hope of winning, not least because his boss, President Donald Trump, had already made it clear that he had no objection to the legalization of marijuana at the state level.

Sensing that Sessions didn’t have a leg to stand on, Cory Gardner, the junior senator from Colorado, responded by declaring that he would block all Justice Department nominees until the Trump administration changed course. And in a phone call last week, Trump assured the senator that he intended to do just that. As if to pour salt on Sessions’s wound, according to Gardner, the president also pledged to support federal legislation that would formalize the right of state governments to establish their own marijuana markets, presumably with only minimal federal oversight. Trump is famously unreliable, and I don’t doubt that passing such a law would take some doing. Nevertheless, it is hard to deny that Sessions’s gambit backfired. Gardner shrewdly played the president against one of his least-favorite lieutenants, and so it seems he will get his way.

Gardner’s role in this contretemps is revealing. Not long ago, he campaigned against legalizing the recreational use of marijuana in his home state, as one might expect from a law-and-order Republican. Yet as support for marijuana legalization has increased, and as the marijuana industry in his home state has grown by leaps and bounds, Gardner has shrewdly repositioned himself as its champion. To be sure, he isn’t as zealous a champion of the cannabis industry as, say, his Senate colleagues Cory Booker, Ron Wyden, or Kirsten Gillibrand, who have sponsored a bill that legalizes marijuana at the federal level, or Rand Paul, who is similarly inclined. But Booker, Wyden, and Gillibrand are liberal Democrats, which makes their enthusiasm something of a dog-bites-man story. Paul, meanwhile, is an avowed libertarian, who often takes pointedly contrarian stands. Gardner, in contrast, has impeccable conservative credentials, and he typically makes his case on federalist grounds: Despite his past misgivings about liberalizing marijuana laws, he defends the right of Coloradans to do so if they choose. His stance is perfectly tailored to neutralize objections from older conservatives who might otherwise balk at the thought of legal weed. Among GOP senators, Gardner is as mainstream as it gets. If he is for legalization, how bad could it possibly be? Many Republicans will be asking themselves exactly that question, especially as cannabis entrepreneurs and investors woo them with campaign contributions and, in some cases, the prospect of future employment. Former House Speaker John Boehner, for instance, has recently signed on as a director of Acreage Holdings, a sprawling cannabis business, and its competitors will surely be looking for notables of their own.

Lost in all of this political maneuvering is the small matter of whether state governments are serving the public interest in their headlong rush to liberalize marijuana laws. The fundamental challenge, as Caulkins argues, is that cannabis is a dependence-inducing intoxicant, and a cheap one at that. In Washington state, a marijuana-legalization pioneer, he observes that the cost per hour of cannabis intoxication “has fallen below $1, cheaper than beer or going to the movies.” This is despite the fact that the state’s marijuana growers and distributors operate in a grey zone—legal at the state level, but not legal at the federal level—which leaves them ineligible for the federal tax deductions to which all more straightforwardly legal businesses are entitled. Gardner, Paul, and Wyden have together sponsored legislation that would correct this little oversight, putting cannabis businesses in a far more favorable position. And if marijuana could be cultivated at industrial scale, using all of the tools and technologies American agriculture has to offer, well, we can expect the cost per hour of cannabis intoxication to fall further still.

If marijuana were largely consumed by adults who partake rarely and responsibly, this would not be much of a concern. According to Caulkins, though, only about one in three cannabis users fall into this fortunate category, and they account for no more than 2 percent of total consumption. Meanwhile, daily and near-daily users account for 80 percent of total consumption, and a far larger share of the profits of your friendly neighborhood marijuana business. Yes, there are cancer patients who use regularly marijuana to ease their pain, and there are traumatized veterans who do much the same. I am happy to concede that cannabis abuse is preferable to opoid abuse. But let’s not kid ourselves: Marijuana, Inc., thrives by catering to binge users, many of whom explicitly state that their dependence is getting in the way of their lives. By the time the cost of an hour of cannabis intoxication falls below $1 nationwide, the picture will start to change: The number of people who will turn to marijuana as a form of self-medication, or as a form of escape, will drastically increase. And most of them will be poor and vulnerable people, not the affluent bohemians so affectionately portrayed on HBO dramedies.

In a 2014 essay for Washington Monthly, Mark A.R. Kleiman, who along with Caulkins is one of the country’s leading experts on drug policy, anticipated the outsized role the marijuana industry would play in debates to come: “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.” As a result, he warned, “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.”

Is it possible to legalize marijuana without drastically increasing the number of Americans who find themselves dependent on it? I certainly hope so. In my ideal world, Congess would establish a federal monopoly on the sale and distribution of narcotics, including but not limited to cannabis, with an eye towards minimizing the size of the black market and avoiding the aggressive marketing and lobbying that would inevitably accompany the emergence of a large for-profit industry. But I recognize that this is, for now, a pipe dream.

Thankfully, Caulkins and Kleiman, among others, have offered serious, rigorous, and realistic proposals for containing the downsides of legalization, including limiting the marijuana market to nonprofits and user-owned co-ops. Though they recognize that America’s experiment with marijuana prohibition has been a failure, and that there’s no turning back from legalization, they reject the notion that Marijuana, Inc., should be in the driver’s seat. What they need now is a politician willing to press their case. Assuming he hasn’t already been captured by the cannabis industry, I humbly nominate Cory Gardner.