On The Nation: Lisa Owen interviews Beau Kilmer

Youtube clips from the show are available here.

Well, Associate Health Minister Peter Dunne says it's time to flick the enlightenment switch when it comes to cannabis.

But Jonathan Coleman says he won't vote to toke.

Beau Kilmer is a US expert on cannabis law reform, he's speaking at a conference at Massey University this week.

I spoke to him earlier and began by asking if there's a middle ground between legal and illegal.

Beau Kilmer: If you’re a jurisdiction and you’re considering alternatives to prohibiting marijuana supply, you have a number of options. In the United States, the debate tends to be very binary –either prohibit or allow marijuana to be sold like alcohol, kind of the for-profit model. But in between those options, there are number of alternatives, for example, you could allow home production, you could allow collectives, you could potentially even have a state monopoly or you could limit the market to non-profit organisations. There are a number of things you can do in between prohibition and the for-profit model.

Lisa Owen: There are four states in the US now, I think, where it’s legal to use recreational cannabis, and several others are heading the same way. How has it been working so far?

Well, the thing you have to keep in mind is while you have these states experimenting with legalisation, this is still all illegal under federal law. So what happened in November of 2012 is really unprecedented. There the voters in Colorado and Washington not only voted to remove the prohibition on marijuana, they also voted to allow for-profit companies to come in and begin producing. And in November of 2014, the voters in Oregon and Alaska also voted to create kind of a commercial model. But in that same election in 2014, in Washington DC, the voters decided to do something else. There they voted to remove prohibition but to allow home production, allow possession and allow people to give it away. But in Washington DC, they don’t have stores where you can walk in, so this would be an example of one of those middle-ground options.

So in terms of the profit model, then, stores selling cannabis for profit, the whole aim is to make money, isn’t it, so how can that be good? Because won’t they be trying to upsell people, target people with a problem?

It depends on your perspective, but what you do have to keep in mind is, at least in the United States and I believe it’s pretty similar in New Zealand, is that the 80-20 rule applies, and that is about 20% of the users account for 80% of the consumption. So in the United States, those are the daily and the near-daily users. So if you’re going to allow for-profit companies to get involved, realise that that’s who they’re going to target. They’re going to try to create and kind of nurture these heavy users, and that could have real implications for public health.

And are they doing that? Are you seeing a problem with that now?

It’s really early to make judgements about public health here in the States. Even though those voters passed those initiatives in Colorado and Washington in November of 2012, realise the stores didn’t open up in Colorado until January of 2014, and in Washington it was July of 2014. So we’re still waiting to get data and there are data lags, and so it’s going to be a while before we can really make some judgements about the overall public health consequences. And one thing I do want to note that is when you begin thinking about the public health consequences of legalising marijuana, of course it’s going to be important to pay attention to what happens to marijuana consumption, especially amongst youth and also those who become more dependent on the substance, but you can’t just look at marijuana in isolation. You also have to look at how marijuana legalisation influences the use of alcohol, the use of tobacco and the use of prescription painkillers. So if you’re going to be objective about this, you have to look at what happens to the use of all of these substances.

Well, that brings us to a good point, because if we are going to do this, if we’re going to change our laws in any way to liberalise, what safeguards need to be in place? Where’s the seat belt in all of this?

Well, you have a lot of options, for example, as I said, there’s middle-ground options, and so one thing you could do is you could potentially take an incremental approach, that is you’re at prohibition, maybe allow home production, try collectives, maybe try a government monopoly. You could try some of these options short of kind of full-scale commercial legalisation, see how it goes for five or 10 years and then at that point make a decision about whether or not you want to continue with that approach or try something else. In fact, you could even potentially build in a sunset clause which would explicitly say, ‘We’ll try this, but then after so many years, if the legislator and the voters don’t decide to continue down this path, then we’d revert,’ and you could try something else.

But even if you go somewhere in the middle with this, you still are going to have to have some kind of enforcement regime and monitoring, aren’t you? For example, if you say that you can only have access to cannabis if you’re 21 or over, there’s still going to be a level of enforcement regime that you have to have no matter what scenario you go with.

Oh, yeah, exactly right. I mean, the idea is legislation – it can reduce some of the criminal justice costs associated with prohibition and then also kind of the consequences associated with having a criminal record, but you’re not going to eliminate all marijuana-related police activity. For example, in the United States, all the states that are legalising, they’re only legalising for those who are 21 years and older, but realise that those under 21 account for 20% to 25% of the market. So if you’re going to go down this path, I mean, jurisdictions need to decide how much money are they going to put into enforcing the laws against those who are using underage and also what would the penalties be? Will it be a criminal offence? Will it just be a fine? Will people be forced to go to treatment? So there are a number of decisions that have to be made, kind of regardless of how it’s supplied.

I mean, what is the scenario? Do you have a drug-testing regime there for driving in those areas where it is legal? There’s some professions— If you’re an airline pilot, we don’t want people flying planes after they’ve been smoking cannabis, so what kind of safeguards have you seen put in place for those kinds of things?

Well, realise that to the extent that it’s still all illegal under federal law, a lot of the policies with respect to those dealing with transportation, those are still in place. No one wants to ride in a plane with a stoned pilot. There are going to be safeguards there after legalisation as well.

You mentioned there the possibility of a government monopoly. What would that look like?

While legalisation has been happening in the United States, Uruguay became the first country in the world to legalise, and there they have a very different model. There if you’re 18 or older, you have to register with the government in order to get legal marijuana and you can only get it through one of three ways and you have to choose. You can either grow it at home, you can join a collective or a cooperative, or eventually they’re going to have it set up to where you’ll be able to buy from a pharmacy that chooses to sell, and you’d only be able to buy a certain amount. So what they’re doing in Uruguay right now is they just licensed a few companies to begin producing the marijuana that will eventually be sold in the pharmacies. And once that’s harvested, the government then is going to be able to set the price and kind of determine potency, and then they’re going to be able to determine which pharmacies get access to it. But there are a number of potential advantages with a government monopoly. One of the concerns, especially here in the United States, with the for-profit model is marketing and advertising. And while states try to put limits on this, with our commercial free-speech doctrine, it makes it very difficult. So, for example, in Uruguay, they’re banning advertising, and other countries can do that as well. So one advantage of having the state monopoly is the state could control production, control diversion, they’d have control over the price, and they could limit marketing there.

But I suppose the thing is we know that cannabis can contribute to mental health problems, we know that smoking can cause cancer, we know that people have addictions, so is it the right thing for the government to be saying, ‘Come buy this from us’?

Well, in a number of places, they have state stores for alcohol. They’ll be in charge of distribution to state liquor stores or those that are heavily licensed. But one of the things jurisdictions would have to decide on are the types of products that are allowed to be sold. Kind of what we’re seeing in Colorado and Washington, even in California where there’s a very loose medical system, is the development of a number of different cannabis products. It’s not just the buds. You’ve got the concentrations, the oils that can be used, for the edibles that can be used in tinctures. So one of the decisions confronting jurisdictions that are thinking about legalising is whether or not they want to legalise all of these products or maybe some of them, and if they are going to allow some, do you want to try to limit the amount of THC that’s in them? So as I’ve said, there’s a number of, kind of, decisions that will have to be made that will ultimately shape what happens with respect to public health.

No politician really wants to be the one who makes toking up legal, so how do we get change if it’s the right thing to do? How do we get change?

Well, that’s really going to depend on where you are. So what’s been happening in the United States so far is that most of this has been going through the voters. The voters have been having these initiatives. But there was an interesting case in the state of Vermont. Vermont’s a fairly small state, but earlier this year, their senate passed a bill which would have created a for-profit commercial model in the state, and the governor supported it. But just yesterday their house, so the other side of the government, just voted that down. But that said, I wouldn’t be surprised to see other legislators in other states begin to kind of have discussions about this and see these bills be debated. But it’s really going to depend on the different jurisdictions.

Thank you so much for joining us this morning, Professor Kilmer. Very interesting to talk to you.

Thank you very much for having me. Take care.

Thank you.

Transcript provided by Able. www.able.co.nz

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