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Want to Legalize Marijuana? Learn From Regulating Alcohol and Tobacco

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By Michele Simon and Leslie Zellers

Some commentators have compared the current effort to legalize marijuana to the post-Prohibition days of alcohol. And many advocates for marijuana legalization are making the comparison to alcohol. Indeed the entire campaign in Colorado in 2012 was called "Regulate Marijuana Like Alcohol." But if supporters of marijuana legalization are serious about this comparison, they might learn some valuable lessons from both alcohol and tobacco control. In each of these areas, advocates have spent decades figuring out what works and what doesn't in regulating legal products that also have the potential for harm.

From the earliest post-Prohibition days, policymakers understood that alcohol still needed to be reasonably regulated to avoid the adverse societal conditions that led to prohibition in the first place. The compromise struck by the 21st Amendment to the U.S. Constitution made alcohol legal again at the federal level, while authorizing the states to control and regulate the sale of alcohol as they saw fit. The landmark 1933 book Toward Liquor Control set out a blueprint for states to balance alcohol availability with regulation that minimizes societal harm.

For example, one important concept is vertical integration, when one company owns and controls every aspect of production and sales, which is rarely good for anyone other than that company. In most states, alcohol is not allowed to be vertically integrated; rather the law requires a three-tier system of producers, distributors, and retailers/bars. The middle tier plays a critical public health role in providing a buffer between the other two, in part by keeping prices higher, and by providing local accountability and market stabilization.

Another critical post-Prohibition recommendation was to ensure that governments, not private parties, were responsible for regulation. The idea was to minimize the profit motive that private interests tend to prioritize. This was probably the most prescient and compelling recommendation. Ample research has shown that "control states" -- where at least some alcohol is sold by government-run stores have fewer public health problems then "license states" -- where there is less government oversight. (Of course, control states still have an incentive to sell, to bring in more revenue, but they also have a mandate to protect the public, which private companies do not.) If there is one recommendation that those pushing for marijuana legalization should heed it's this: minimize the profit-motive in order to protect public health.

Similar lessons can be learned from efforts to regulate tobacco products, a multibillion-dollar industry. Although the sale of tobacco products is legal for adults, government oversight is necessary to protect minors from becoming addicted before they are able to understand the consequences of their decision and to protect nonsmokers from the harmful effects of secondhand smoke.

Two of the most effective policies in reducing tobacco use and tobacco-related disease are increasing tobacco taxes and adopting laws to create smoke-free public places. Raising tobacco taxes have been effective in increasing the retail price of cigarettes while funding important tobacco prevention work. Smoke-free laws have not only protected non-smokers from exposure to dangerous secondhand smoke but also changed social norms about where it was acceptable to smoke, and in the process motivated thousands to quit. These two strategies should be explored in tandem with efforts to legalize marijuana.

For alcohol, taxation has also proven to be among the most effective policies to minimize harm, but unfortunately, the politics have been much harder than with tobacco. As a result, in most states alcohol tax rates have eroded over time and not kept up with inflation. This has created a de facto government subsidy for alcohol sales, and is a major reason we've not seen similar gains in curbing alcohol problems as we have with tobacco. While Colorado is already celebrating the boon to government coffers from higher-than-expected sales of marijuana, states considering legalization should heed the cautionary tale of alcohol taxation.

Another top priority should be strict oversight of retail outlets. Much can be learned from regulating alcohol outlets and tobacco retailers, including the mechanism for accountability (e.g., licensing, zoning laws) as well as specific requirements imposed on retailers (e.g., checking ID, suspending licenses for selling to minors).

Another important area to consider is marketing. We can learn from efforts to regulate alcohol and tobacco marketing, especially on the delicate act of balancing the First Amendment with concerns of over-exposure. Today's generation of children has likely never seen a television ad for cigarettes but they could soon see an ad for marijuana.

Relatedly, tobacco control has been very successful with regulations aimed at protecting children (e.g., banning sales to minors and limiting marketing targeted at youth). In alcohol control, the most effective policy to prevent youth drinking has been setting the minimum drinking age at 21. In contrast, the minimum age for tobacco is usually set at 18, so this is another area ripe for examination for best practices in marijuana policy.

In addition to youth access, we are already seeing disturbing examples of small children accidentally eating cookies and other kid-friendly foods laced with marijuana; what sort of controls can be put in place to minimum such harm? Again, alcohol and tobacco policy experts have grappled with such challenges through mechanisms such as warning labels.

The most important overarching lesson is the need for evidence-based policy solutions. We know what works in alcohol and tobacco control because we have decades of research to demonstrate the impact of specific policy approaches on reducing alcohol and tobacco-related death and disease. For example, the U.S. Centers for Disease Control and Prevention has a number of proven policy strategies for alcohol and tobacco.

Now is the time to be collecting information on marijuana policies. What impact does marijuana legalization have on adult and adolescent marijuana use? How does it impact alcohol consumption or other drug uptake? What is the impact on crime and sales of illegal drugs? What is the allowable level of marijuana for people to operate a vehicle? It's imperative that we develop public health and social science research to show which policies are effective.

We don't need to reinvent the wheel. If those advocating for legalizing marijuana are serious about doing this right, they should borrow from the best available regulations of related products and not repeat the same mistakes. The most painful lesson from alcohol and tobacco control is that profit motive can trump all other concerns. The right preventive measures should be put in place early on, and then need to be vigorously defended against the tidal wave of deregulation, to strike the right balance between legal availability and protecting public health.

Leslie Zellers is a public health attorney with more than 20 years of experience in tobacco control policy.