Legally regulated cannabis markets in the US

Implications and possibilities
14 November 2013

In November 2012, voters in two US states – Washington and Colorado – approved ballot initiatives to establish legally regulated markets for the production, sale, use and taxation of cannabis (commonly referred to in the US as marijuana). This is the first time anywhere in the world that the recreational use of the drug will be legally regulated – the wellknown coffee shop system in the Netherlands is merely tolerated rather than enshrined in law. Needless to say, with implications both within and beyond US borders, the drug policy community is watching Colorado and Washington closely.

The votes not only put these US states in contravention of US federal law, but also generate considerable tension between the federal government and the 1961 United Nations Single Convention on Narcotic Drugs, the bedrock of the international drug control regime that the US has so worked so hard to construct and sustain. The federal government was slow to respond to this news. In December 2012, President Obama told ABC News that the government had ‘bigger fish to fry’ and that ‘It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal’. In March 2013, US Attorney General, Eric Holder, told the US Senate that the Justice Department would respond ‘relatively soon’ to the votes.

Six months later, no announcement had been made. This was perhaps no surprise. Beyond the Obama administration’s calculations concerning the political situation in states where votes for marijuana legalisation exceeded the votes he polled in the presidential election, the Department of Justice had to thoroughly consider the relationship between the states and the federal government, including in relation to the 1970 Controlled Substances Act establishing the federal prohibition of drugs, and Washington D.C.’s commitments under international law. Finally, on August 29, 2013, the Department of Justice issued a memorandum to federal prosecutors and law enforcement in light of the state initiatives which set out eight enforcement priorities whilst still reiterating the commitment to >maintaining federal laws prohibiting marijuana.

While the memorandum sheds much light on the federal government’s likely course going forward, the issue is far from resolved. Regardless, these ground-breaking votes have certainly changed the drug policy landscape; most likely irrevocably. At the international level, increasingly intense discussion of and legislative shifts towards drug policy reform in Latin America are taking place with an eye on events to the north, including how they relate to the UN drug control treaties. And within the US itself, a number of other states are looking to alter their legal approaches to cannabis and to adopt their own regulative systems. In 2013, eleven US states proposed legislative bills (as opposed to ballot initiatives) to regulate and tax marijuana. Whilst many of these have stalled in the short term, cannabis legalisation is firmly on the policy agenda.

Beginning with an historical overview within which to locate recent policy shifts in Washington and Colorado, this brief summarises the details of the planned regulative frameworks for recreational cannabis within these states and highlights both similarities and differences in approach. It also outlines the status and details of similar reformist endeavours that have taken place in other US states during 2013. As will be discussed, while many of these appear to have stalled for the time being, they have not only increased the pressure on the US federal government to seek some form of resolution to the state-federal conflict brought about by the implementation of legally regulated cannabis markets, but are also a reflection of a shift in public attitudes towards recreational use of the drug. Additionally, mindful of the implications of the votes beyond US borders, the brief addresses the inter-related impacts upon the increasingly energetic debates and ongoing policy shifts within Latin America and the emerging tensions around cannabis within the UN based international drug control system.

Key Points

• In November 2012, voters in Washington and Colorado passed ballot initiatives that establish legally regulated markets for the production, sale, use and taxation of cannabis - the first time anywhere in the world that recreational use of the drug will be legally regulated.

• The construction of legally regulated cannabis markets in these US states must be viewed as part of a long running process of ‘softening’ the official zero-tolerance approach.

• Support for legalising cannabis has been growing in the US for some time and it is highest in states that have medical marijuana laws, but not decriminalisation. This suggests that voters recognize the benefits of regulation over the relaxation of laws.

• The regulatory regimes being pursued in Washington and Colorado differ in a number of respects. It will be important to see how these differences affect the operation of their respective markets.

• The votes put these US states in contravention of US federal law and, beyond US borders, they generate considerable tension between the federal government and the international drug control system.

• These developments also impact on the ongoing policy shifts within Latin America – including Uruguay - and the emerging tensions around cannabis within the UN system.

• It is vital that the operation of the legally regulated markets in Washington and Colorado is closely monitored and that, where necessary, structures are adjusted in response to any emerging issues.

• Other states in the US and countries across the world will be observing the regulatory frameworks introduced in Washington and Colorado in order to see how effective they are in reducing the harms associated with the illicit cannabis market.

November 2013
GDPO Policy Report 1