In November 2016, California became the fifth state to legalize marijuana. Adults 21 and older were able to use, carry and grow marijuana. Legal recreational sales were added to existing medical marijuana.
A new job in California provided me an opportunity to observe the first year of legalization. The first day of legal sales of recreational use coincided with my arrival, this followed 20 years of medicinal marijuana in the state. In this essay I provide my observations of what should be front of mind for Minnesota policymakers.
These observations are provided through my own biases as a public health scientist with a background in tobacco control.
1. Any legislation should provide a net benefit for the population.
At the very top of my agenda is the inclusion of public health in the discussion of legalization. And while we can agree prohibition has created huge injustices, let us not pretend that consuming marijuana has no risks. There should be a hard distinction against any assumption that legalization is an endorsement of freedom from risk.
We know enough to be cautious. Cannabis use disorder is a harmful consequence of compulsive use; addiction is a real concern for 1 of every 10 users, with increased risk for those who start using in their teens. In addition, there are adverse side effects and the risk of psychosis, perhaps linked to high levels of THC.
What should Minnesota do? If legalization is a net benefit, then strict regulations should be created to manage the marijuana industry. Minnesota should also adapt and update policies over time.
2. A plan should be created to reduce harms and unknown consequences.
For the past year, marketing messages on billboards have promoted cannabis products as wellness for the whole family. In this case the sell was for Cannabidiol oil or CBD, the non-intoxicating industrial extract from hemp plants. This was followed by online ordering and delivery; next up will be indoor cannabis lounges similar to the Amsterdam coffee shops with pot for sampling.
What should Minnesota do? If marijuana prohibition was a disaster because minorities were the target of detention and jail for marijuana offenses, the course correction of unfettered business marketing is not the answer. A plan should imagine future needs for drug treatment, for stronger prevention programs in schools, and research needs — for example, how to test driving under the influence.
3. Just like Big Tobacco, the marijuana industry cannot be trusted.
There will be an even bigger flood to market of products as the industry establishes the use of CBD/THC as routine and personalized with brand endorsement from celebrities. To create a level of respectability, the marijuana industry will cultivate a language of cannabis designed to ease our concerns (see Thomas Fuller’s piece in the New York Times, October 2018).
What should Minnesota do? Minnesota should carefully consider whether the market should be wide open to all possible products despite limited evidence. Descriptions like CBD-rich therapeutic products should be challenged.
4. Just like tobacco, marijuana cannot be smoked or vaped in public places.
In California you can consume marijuana on private property but smoking, eating or vaping is banned in public places. Anywhere tobacco is prohibited applies to marijuana. As I commute from Berkeley to Oakland, there are hotspots where the distinctive smell is omnipresent, much like the other big cities where marijuana use is legal.
What should Minnesota do? Public policy should be on the side of the greater public good and resist a wide open normalization of cannabis use. Trading marijuana smoking as a replacement for tobacco smoking would be a poor policy solution. Smelling secondhand marijuana smoke is a common complaint that can be prevented. All smoking should be banned in public places and there should be significant enforcement.
5. Products must be sold in marijuana-only retail stores.
If legal cannabis businesses are following state regulations and paying their taxes, then illegal operations cannot be allowed. To ensure that only legal entities can promote themselves to consumers a business state-issued license number must be included in ads.
What should Minnesota do? Minnesota should manage the location, type, and density of retail locations. Sampling should not be permitted, and other locations — such as liquor stores and convenience stores — cannot sell marijuana.
6. Preventing sales to under 21 must be strictly enforced.
There is significant consensus in the public health community and likely in the general public that young people should avoid trying tobacco and marijuana. Age 21 has emerged as the preferred age that prevents younger age use.
What should Minnesota do? Minnesota should harmonize tobacco and marijuana laws to restrict use to those 21 and older.
7. A portion of excise taxes should be appropriated for treatment (1 percent), research (1 percent), and prevention (1 percent).
California has a marijuana excise tax of 15 percent, but additional local taxes could increase to 45 percent. A segment of California adults and tourists appear content to stay in the legal market (reported first year marijuana tax revenue was $345 million), but a large illegal market remains.
What should Minnesota do? Tax policy must consider not just revenue, but also preventing young people from starting, encouraging substitution for more dangerous drugs, and reducing the illegal market. Minnesota should be pragmatic and start with a tax similar to Oregon with a cap on excise taxes of 10 percent for the state and 10 percent for local tax. But the real need is dedicated taxation for treatment, prevention, and research. The law should allocate a modest 1 percent to each of these areas as a part of the plan to mitigate expected harms from increased use of marijuana.
8. THC potency should be limited to reduce harm.
One of the tough decisions will be potency, which is a measurement of Δ9-tetrahydrocannabinol (Δ9-THC; or THC), and ultimately the concern is the rising ratio of THC/CBD. Current THC levels continue to increase as cultivators breed strains with higher levels (eg. THC/CBD ratio 18:1). New research suggests potency is a significant concern with increased admissions to drug treatment associated with increasing THC levels over 16 years of study in Europe.
What should Minnesota do? Minnesota should rely on established science to guide policy. The 2017 report from the National Academies of Sciences, Engineering, and Medicine found evidence supporting treatment of cancer patients for nausea, for example. But little evidence to support the use of CBD except for seizures (Epidiolex is the first FDA-approved cannabis-derived drug in the US).
9. Implement an equity permit program to minimize barriers to licensing for residents who are victims of the war on drugs.
Los Angeles has implemented a cannabis social equity program, which is described as “equitable ownership and employment opportunities in the cannabis industry in order to decrease disparities in life outcomes for marginalized communities and to address the disproportionate impacts of the war on drugs in those communities.”
What should Minnesota do? Minnesota should provide local control after legalization. In California, the law permits dual control where local municipalities can decide whether or not to issue a retail license.
10. Reserve the right to revisit this playbook for marijuana legalization as more evidence is available.
It is possible to move toward a correction of criminal injustices for communities that were harmed by marijuana laws, but we are charged with completing that task with eyes wide open to the known and unknown risks of marijuana use. If Minnesota legalizes marijuana then policymakers should adopt smart and strong public policy that protects the population while allowing consumption by adults.
Raymond Boyle, Ph.D., is a public health scientist living in Berkeley. Before California, Boyle was the director of research for ClearWay Minnesota, a tobacco control organization. He has spent most of his career conducting tobacco control research in Minnesota and has published more than 100 peer-reviewed scientific papers.
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