Washington's Dilemma: How to Implement Legal Marijuana

Mark Kleiman
Mark Kleiman, Washington State’s new ’Pot Czar’

Mark A. R. Kleiman's company, BOTEC Analysis, has been hired by Washington's Liquor Control Board to help the state draft rules and regulations for its legal marijuana system.

Kleiman, a professor of public policy at UCLA, has long been recognized as a drug policy authority. His resume is impressive, as is his output as a writer. Specific to marijuana policy, he's a co-author of the 2012 book, Marijuana Legalization: What Everyone Needs to Know.

Kleiman has always been critical of the drug war, yet he's also been at odds with reformers and most attempts at marijuana-law reform. He noted this on his blog on Mar. 19: "In 2010, I wrote an op-ed for the L.A. Times pointing out the problems with Proposition 19, the proposal to legalize cannabis in California. The post focused on the conflicts between that proposal and federal law. That has led to some queries about how someone who wrote that op-ed can help implement the Washington law. A fair question...“

Now, rather than seeing legalization as something a state can't do, he seems to view marijuana legalization in Washington as a sort of grand social experiment. ”Ask me five years from now what I think about legalization and maybe I’ll have an opinion worth listening to," Kleiman writes. "My stated opinion is that a non-commercial system - grow-your-own plus consumer-owned co-ops - would likely outperform an alcohol-style commercial system, weighing advantages against disadvantages. But that’s not in the cards politically, because it doesn’t raise revenue. And it makes more sense as a national policy than as a state-level policy. Legal grow-your-own in one state could easily lead to a massive export trade: that’s the risk facing Colorado. Washington, which doesn’t allow home-growing, doesn’t face that risk. Just as well."

In terms of Washington's program, Kleiman has been throwing some cold water on over-heated expectations of cannabis revenue, most recently in a televised interview on the program Inside Olympia. “Washington state shouldn't hold its breath for a major pot tax revenues," David Downs writes in Oakland's East Bay Express about the interview. "That's because the state's heaviest weed smokers are already growing and buying inside Washington's medical marijuana regime - where recreational taxes do not apply.”

Kleiman's assumption that estimates of the amounts of marijuana consumed by people in a post-legalization world will remain the same as before (when marijuana was illegal) is shaky at best. If we really do see a substitution effect where alcohol is concerned - as many advocates hope - we're practically guaranteed there'll be an increase in the amounts of marijuana consumed by those former alcohol users. The downside of that, of course, is, as long as everything goes well, revenue from alcohol would decline. That's mitigated by the fact that alcohol revenue is typically a pittance compared with the actual costs of alcohol use.

 Then again, If everything goes wrong, alcohol users won't reduce their consumption and will instead add marijuana. We should be prepared for the probability that among some problem users this may actually happen. The extent to which it occurs, and to which substitution occurs instead, will be a big test for legalization.

Ignoring the substitution question, we also don't really know whether legal availability in itself will mean a change in use patterns. Legal availability of medical marijuana probably meant an increase in the amounts used by medical patients relative to when they didn't have safe, secure access to marijuana. If it's true that some patients use cannabis as a substitute for opioids - an argument which many advocates hope and believe is correct, and research seems to support - then there's no question that for these patients, the amount of medical marijuana used increased (while at the same time their use of prescription opioid analgesics decreased). I'll even grant that medical use is different from social use - except for those social users who are actually self-medicating and haven't come out to others or even themselves as medical users.

"I don't think the legal market they are imagining is going to be able to compete with the medical market if it remains as wide open as it currently is," Kleiman stated in the Inside Olympia interview.

The corollary is, change the medical market and the legal adult market can be competitive. Though I realize this was the fear of some patients, that does not seem to be Kleiman's preference. "The only way to get a lot of revenue is to sell a lot of marijuana," Kleiman explained. "And the only way to sell a lot of marijuana is to sell it to people who smoke a lot of marijuana. And that’s not a good thing. You don’t want the state to set itself up as dependent on dependent cannabis users any more than you want the state to do what it already has done, which is to set itself up as dependent on addicted gamblers. I don’t think anybody in this process wants to see the legal cannabis market go the way of the state lottery, where they’ve got a state agency that’s deliberately fostering disease. Adults want to use a responsible amount of cannabis. I don’t think that’s a bad thing.”

However, Kleiman admits, those choices aren't his to make; it's the state officials who are responsible for those decisions. BOTEC (an acronym which stands for “Back Of The Envelope Calculations") will simply present to those officials the options from which they may choose. "The Board didn’t hire me. They hired a team, with BOTEC as the prime contractor," he points out. "The team isn’t going to be the Czar, or the Grand Vizier, or even the consigliere. We’re just the folks with the calculators and the clipboards saying, 'Your choices seem to be X and Y. If you do X, the likely outcomes are A, B and C. If instead you do Y, the likely outcomes are D, E and F. A is better than D, and B is better than E, but C is a lot worse than F. Take your pick.'”

Still, one thing is safe to say: Whatever Kleiman and his folks come up with and whatever the state adopts, it's inevitable that those rules and regulations will change over time as the state gets more experience with legal marijuana, and as they decide whether marijuana legalization is about sensible social policy or about making money. Kleiman himself notes the need for flexibility in his blog:

”We are all - speaking for the team now - a little bit daunted by the task ahead, but mostly excited. All the claims we’ve made over the years about knowing how to make smart drug policy are about to be put to the test, and the stakes are high. Any honest assessment of the situation needs to acknowledge uncertainty and change. Whatever system Washington State puts in place by Dec. 1 will face a period of rapid adjustment as the industry and consumers deal with the new situation. So it’s extremely unlikely that the first set of regulations - no matter how skillfully designed - will be the perfect set of regulations for the long term. That suggests the importance of adaptability. Washington State needs to craft an initial set of rules that lends itself to adaptation and to develop a monitoring process that will help the Board, the industry, and consumers learn quickly from experience.“

Doug McVay

Doug McVay

Writer and KBOO radio host based in Portland, Ore. He's also editor of DrugPolicyFacts.org.