Prohibition is a Kind of Regulation

So stop saying legalization will solve legalization's problems

The Atlantic has a new piece up by Malcolm Ferguson, about the rise in the potency of marijuana. It’s mostly good, and I recommend it. It’s the second piece from the Atlantic I’ve seen recently on the absurdities of the current marijuana situation—this one, on the accidental legalization of hemp-derived THC products, is also worth your attention. In general, I’m glad that a high-profile outlet is dedicating time and attention to this issue.¹

Lauding out of the way, I want to object to a specific argument Ferguson advances towards the end of the piece: that the best way to arrest the spiraling increase in marijuana potency is to legalize marijuana federally. He writes:

If the incentives of the market point to ever-higher concentrations of THC, one path to milder varieties would be government regulation. But legal weed exists largely in a regulatory vacuum.

Six years ago, my colleague Annie Lowrey observed that “the lack of federal involvement in legalization has meant that marijuana products are not being safety-tested like pharmaceuticals; measured and dosed like food products; subjected to agricultural-safety and pesticide standards like crops; and held to labeling standards like alcohol.” Very little has changed since she wrote that. …

To establish an approach to marijuana legalization that protects consumers and gives them real choice and information about what they’re using, Congress would need to fully deschedule weed, not just reschedule it. Descheduling marijuana would circumvent the legal baggage of Schedule 3, allowing the federal government to ease into a nationally standardized set of health and safety regulations for recreational use, not just medical.

The problem Ferguson means to address is the steady increase in the concentration of THC in state-legal marijuana products. He correctly identifies the source of this problem as the domination of the market by the preferences of THC addicts, who consume the large majority of the product and to whom businesses consequently cater. But then, quite confusingly, he argues that only by ending prohibition can the federal government impose regulations that will mitigate this problem.

This style of argument is not novel to Ferguson. The campaign supporting passage of Florida’s marijuana legalization amendment, for example, has argued that only by legalizing can the state impose clean-air restrictions on public marijuana smoking. It asserts, “currently, non-medical uses for marijuana are illegal in Florida and as such, lawmakers cannot put ‘limits’ on something that is already illegal.” Just to reiterate: the argument is that because marijuana is illegal, Florida cannot put “limits” on its consumption.

Why do I find these arguments so irritating? Because they draw a conceptual distinction between prohibition and regulation, and assert that only by ending prohibition can we regulate. But this is nonsense. Prohibition is a form of regulation. And while it may have other problems, prohibition is exactly designed to mitigate concerns like these, which is to say concerns that emerge because of legalization.

Take the case of THC concentration caps. There is currently a federal THC potency cap: producers cannot manufacture, and retailers cannot sell, products containing more than 0% THC.² The fact that this potency cap is unenforced in legalization jurisdictions does not mean it is not there. That is a function of current enforcement priorities, not of prohibition per se. It does not change the fact that any federal potency cap regulation imposed post-descheduling would, by definition, be a loosening relative to the status quo.

Similarly, the current regulations on smoking marijuana in public in Florida is that it is illegal to be in “actual or constructive possession” of marijuana unless it was lawfully obtained from a practitioner under the state’s “medical” marijuana laws. Save for non-enforcement provisions passed by some cities and counties, a person cannot smoke marijuana in public because he cannot possess marijuana in public. Any clean-air regulation imposed following legalization would still be, necessarily, less restrictive than a law that prohibits even possessing marijuana.

To reiterate, the more general form of this argument is that prohibition is a form of regulation. They are not distinct kinds of thing; one is a particularly aggressive instance of the other. Indeed, many kinds of regulation are simply targeted prohibitions. A hypothetical national potency cap is a prohibition on the sale of marijuana which exceeds the cap. A labeling requirement is a prohibition on the sale of marijuana which fails to comply with the requirement. Taxes on potency are a prohibition on the sale of untaxed product. The fact that some prohibitions are more or less targeted does not make them meaningfully distinct.

In fact, the above arguments ascribe to prohibition conditions which are created by legalization. Potency, Ferguson acknowledges, rises because of competition for THC-addicted consumers. That competition exists in the state-legal market, which is—because it is permitted by law—much more efficient than is the illegal market. There is a reason THC concentrations have skyrocketed over the period of liberalization!

Similarly, public consumption of marijuana and attendant smell is a problem primarily and insofar as there is no enforcement against it. The level of enforcement is not going to be increased following legalization. Either in law or in fact, it will decrease, insofar as there is less appetite for spending scarce enforcement resources on public consumption of a product that is not illegal.

As Mark Kleiman argued, drug policy involves a core trade-off. Drugs are harmful, but prohibition of drugs is also harmful. Good drug policy involves optimizing this trade-off to minimize the harms of both.

Legalization advocates, though, would like to have their cake and eat it too—to believe that everything bad about drugs is actually caused by prohibition. More sober analysis recognizes that there is no policy problem without trade-offs. Let me suggest to you that anytime someone claims otherwise—claims that the solution to the problems of liberalization is more liberalization—you should not take that argument seriously.

1. However belatedly—note how the Atlantic covered hemp legalization at the time, e.g.

2. Okay, actually, they can’t sell products containing more than 0.3% delta-9 THC by weight, and then there is variation at the state level. But this is the massive mess created by 2018 legalization of hemp-derived products. Again, read the Atlantic piece for a good summary. (Also, technically synthetic delta-9 as dronabinol is a schedule II substance that can be prescribed for certain indicated conditions. But now we are really in the weeds.)