By Philipp Nagel and Fernanda Alonso
A month ago, rumors spread that the DEA was about to reschedule cannabis from a Schedule I to a Schedule II drug in the Controlled Substances Act. Even though this rescheduling would not have many impacts in terms of legalization, it would allow derivatives of cannabis to be made available through medical prescription, if approved by the FDA. Even more importantly, the rescheduling would allow medical and scientific research under more relaxed conditions.
While those rumors have collectively been considered a false alert, there was reason to think things were finally starting to move at the federal level. In late 2015, the FDA apparently forwarded a recommendation on a potential rescheduling of cannabis to the DEA, the content of which remains unknown. The DEA, which would effectively be in charge of conducting a rescheduling, has yet to take any action. In a letter to Sen. Elizabeth Warren and seven other Democratic senators, the DEA had stated that a decision would be made within the first half of 2016. One week into the second half of 2016, however, the decision-making process appears to be more controversial than initially thought. In the meantime, lack of federal action leaves the states as the powerhouse for cannabis legalization and its effects.
It has been almost four years since Colorado passed Amendment 64, legalizing cannabis for personal use, and 2 and a half years since the first shops opened. We are no longer completely in the dark about the effects that legalization has had and should start using this state’s example when thinking about further legalization efforts. One of the major arguments used by the opponents of cannabis legalization is that widespread availability will – almost naturally – trigger increased use among the population, especially amongst youth. Looking at available data from Colorado, it would appear this is not the case. The 2015 Healthy Kids Colorado Survey indicates that use among teenagers has hardly changed since the first retail store for recreational cannabis opened in Colorado in January 2014. This is in line with the findings of a previous study conducted shortly after legalization occurred in Colorado.
The Healthy Kids Colorado Survey of 2015 has found that 21.2% of teens have used cannabis in the past month. While this marks a minor increase compared to the data published in 2013, when 19.7% of teens had been using cannabis in the past month, the data shows a clear decrease from 24.8% in 2009, before legalization of non-medical cannabis took place.
The survey further indicates that, in 2015, youth use in Colorado was even below the national average:
From a public health perspective, the biggest concern – the increase in youth consumption – has apparently remained stable. So, can we say that legalization, two and a half years into the project, has been a success in other areas as well? From a financial perspective, it seems so. Colorado imposes a 2.9% sales tax on medical and recreational cannabis as well as an additional 10% sales tax as well as a 15% excise tax on recreational cannabis. According to the latest figures published by the Colorado Department of Revenue:
Legalization has also visibly impacted the crime statistics in Colorado. According to recent statistics, the overall amount of cannabis-related arrests has dropped by 95% since 2010. Additionally, data from the Colorado Court system in 2014, cannabis possession arrests have dropped 84% since 2010 and arrests for cultivating and distributing cannabis have also dropped by more than 90%.
All this said and done, challenges do still remain; the regulation of edibles, the labelling and testing of cannabis products as well as driving under the influence are still issues that have certain glitches. The fear of an increase of driving under (cannabis) influence (DUI) has been major argument of legalization opponents. Colorado State Patrol reported that the number of citations issued for impaired driving from cannabis has fallen slightly since the agency started tracking the numbers two years ago. In 2015, troopers handed out 4,546 citations for driving under the influence of drugs or alcohol, with 665 including cannabis and 347 of them – or 7.6%- involving only this drug. These numbers decreased 1.3% from 2014, where 5,546 citations were given, 647 involving cannabis. More concerning is that through the “Drive High, Get a DUI” campaign, the Colorado Department of Transportation reported that 51% of cannabis ere not aware that driving under the influence of cannabis was prohibited. This survey also showed that about 55% of users drove a vehicle within 2 hours of consuming marijuana.
The current legal limit (both in Colorado and Washington) for THC is 5 nanograms or less per milliliter – which depends very much on the individual. It remains a challenge, however, to determine a valid threshold for cannabis-induced DUI, as apparently, blood tests to determine the THC-level appear to be unreliable, as no direct connection between THC-blood-levels and driving impairment has yet to be scientifically proven. Oregon and Alaska, in contrast to Washington and Colorado, therefore rely on the expertise of trained drug experts and an evaluation of the individual suspected of DUI. Either way, a safe bet is to abstain from cannabis consumption entirely before deciding to drive.
Labeling and dosing of THC-containing products and the regulation of edibles remains another issue that regulators are trying to cope with. By December 2014, edibles made up 45% of Colorado’s cannabis market based on units sold, making any issues with these products a widespread problem. Similarly to the medical cannabis markets in other states, there have been some problems with dosing for edible non-medical cannabis products. In March 2014 and April 2015, the Denver Post conducted studies on some of the largest producers of cannabis-infused edibles in Colorado to analyze whether their product labeling matched the actual THC content. In 2014, they found that none of the products labeled at 100 milligrams of THC actually contained that level, with the majority of products ranging anywhere between 17 and 146 milligrams (and one brand containing less than half a milligram). In 2015, potency claims on the packaging were more accurate, but with differences between 17-30% of the labeled amount. The improvement could be due to the stricter regulations introduced by the Colorado government regarding edibles in February of 2015. A similar study in JAMA in California and Washington showed similar results. A review of dozens of products from marijuana dispensaries in these two states found that 23% of products contained more active chemicals than their labels suggested, while 60% fell short on what was promised.
What’s to come?
Colorado and Washington have been the country’s guinea pigs in terms of cannabis legalization. It has been up to them to identify all the problems, quirks and concerns. Oregon and Alaska have already used these two states’ experiences in designing their own markets and in a couple of years we will have a couple of models to pick and choose from when considering legalization. Alaska for example, is still in the early stages of implementation. The first dispensaries are set to open only at the end of 2016. According to latest news, California will be the next step to folllow through a ballot initiative on the legalization oin November. Arizona seems to be pushing a similar timeline.
It has yet to be seen whether the developments observed in Colorado may prove to be a global phenomenon or if they will only be copied in the US. On an international level, despite the fact that Uruguay de facto legalized cannabis for non-medical purposes in December 2013, we still have very little data. Their model, which varies significantly from the Colorado and Washington one could eventually prove to be another option. However, cannabis sales, which, under the law, are only permitted through pharmacies through a government monopoly, still remain unavailable. The government has recently announced that full implementation of the law shall take place later in 2016. For the time being though, it appears that, besides home-grown cannabis, the illicit market remains the predominant source of cannabis supply for Uruguayans. Apart from Uruguay, Canada might be the next country to legalize recreational cannabis, potentially in 2017. However, until any of this happens, the four states in the US will continue to be at the forefront of this development. The developments here will be decisive for how governments will treat cannabis around the globe in years to come – and despite some shortcomings, it looks like they’ve had a pretty good start.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.