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Buffalo Law Review Volume 69 Number 2 Article 1 4-15-2021 Cannabis Capitalism Paul J. Larkin Jr. The Heritage Foundation Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Food and Drug Law Commons, and the State and Local Government Law Commons Recommended Citation Paul J. Larkin Jr., Cannabis Capitalism, 69 Buff. L. Rev. 215 (2021). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol69/iss2/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. Buffalo Law Review VOLUME 69 APRIL 2021 NUMBER 2 Cannabis Capitalism PAUL J. LARKIN, JR.† CONTENTS INTRODUCTION ..................................................................... 216 I. THE EVOLUTION OF CANNABIS FROM CONTRABAND TO CONSUMER PRODUCT ........................................................... 223 A. The Legal Evolution ..................................................... 223 B. The Contemporary Cannabis Business ........................ 228 II. CANNABIS REGULATORY ISSUES .................................... 242 A. Traditional Cannabis Regulatory Issues ..................... 242 B. Nontraditional Cannabis Regulatory Issues ............... 254 1. Two Problems: Cannabis Dependence and Driving Under the Influence of Cannabis ................................................... 255 † John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.P. George Washington University, 2010; J.D., Stanford Law School, 1980; B.A., Washington & Lee University, 1977. The views expressed are my own and should not be construed as representing any official position of The Heritage Foundation. GianCarlo Canaparo, Paul G. Cassell, Robert L. DuPont, John G. Malcolm, Caleb Redmond, Abigail Slagle, Zack Smith, Charmaine Yoest, and Stephanie Zawada provided helpful comments on an earlier version of this Article. Lucas Drill provided invaluable research assistance. Any errors are mine. In the interest of full disclosure, I was one of the lawyers who represented the United States in a case discussed below, United States v. Edge Broadcasting Co., 509 U.S. 418 (1993). 215 216 BUFFALO LAW REVIEW [Vol. 69 2. A Response: State Ownership of Retail Cannabis Stores ................................................................................... 269 III. STATE SOVEREIGNTY AND COOPERATIVE FEDERALISM .. 279 CONCLUSION ......................................................................... 293 INTRODUCTION The last 25 years have witnessed a revolutionary change in the status of cannabis under American law. Before 1996, state and federal law uniformly outlawed its distribution.1 By contrast, today 36 states allow marijuana to be sold for its potential medical use and 15 (along with the District of Columbia) also permit its recreational use.2 The federal Controlled Substances Act of 1970 (CSA), however, still bans the sale of cannabis for any purpose.3 The debate over the appropriate status of marijuana begun in the 1960s4 has only 1. See, e.g., 21 U.S.C. § 841; RICHARD J. BONNIE & CHARLES H. WHITEBREAD II, THE MARIJUANA CONVICTION: A HISTORY OF MARIJUANA PROHIBITION IN THE UNITED STATES (1999). 2. See, e.g., Wayne Hall & Michael Lynskey, Assessing the Public Health Impacts of Legalizing Recreational Cannabis Use: The U.S. Experience, 19 WORLD PSYCHIATRY 179, 179-80 (2020); Claire Hansen & Horus Alas, Where Is Marijuana Legal? A Guide to Marijuana Legalization, U.S. NEWS & WORLD REP. (Nov. 13, 2020, 3:24 PM), https://www.usnews.com/news/best-states/articles/where-is- marijuana-legal-a-guide-to-marijuana-legalization; Marijuana: Effects, Medical Uses, and Legalization, DRUGS.COM, https://www.drugs.com/illicit/ marijuana.html (last visited Jan. 2, 2020); State Medical Marijuana Laws, NAT’L CONF. OF STATE LEGISLATURES, https://www.ncsl.org/research/health/state- medical-marijuana-laws.aspx (Feb. 19, 2021). 3. The Controlled Substances Act was Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1242 (current version at 21 U.S.C. §§ 801–904). Title I addressed prevention and treatment of narcotics addiction, and Title III dealt with the import and export of controlled substances. Gonzales v. Raich, 545 U.S. 1, 12 n.19 (2005). A “controlled substance” is “a drug or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V of part B of this [subchapter],” except for “distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.” 21 U.S.C. § 802(6). The Controlled Substances Act incorporates the definition of a “drug” from the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(g)(1). 4. See, e.g., NAT’L COMM’N ON MARIHUANA AND DRUG ABUSE, MARIHUANA: A SIGNAL OF MISUNDERSTANDING (1972) [hereinafter MARIHUANA: A SIGNAL OF 2021] CANNABIS CAPITALISM 217 accelerated since then and won’t slow down anytime soon.5 A thorough debate is critical to informed policymaking. Unfortunately, however, “cannabis policy has raced ahead of cannabis science.”6 For example, much of the past discussion about legalization took place at a time when marijuana was far less potent than it is today.7 That development is an MISUNDERSTANDING]; E.R. BLOOMQUIST, MARIJUANA (1968); MARIJUANA (Erich Goode ed., 1969); LESTER GRINSPOON, MARIHUANA RECONSIDERED (2d ed. 1977); JOHN KAPLAN, MARIJUANA: THE NEW PROHIBITION (1970); HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 333 (1968) (“A clearer case of misapplication of the criminal sanction would be difficult to imagine.”); JOHN ROSEVEAR, POT: A HANDBOOK OF MARIHUANA (1967); MICHAEL SCHOFIELD, THE STRANGE CASE OF POT (1971); THE MARIHUANA PAPERS (David Solomon ed., 1968) [hereinafter THE MARIHUANA PAPERS]; Geoffrey Richard Wagner Smith, Possession of Marijuana in San Mateo County: Some Social Costs of Criminalization, 22 STAN. L. REV. 101, 103 (1969) (“In the same week that the President of the United States declared an all-out war on marijuana smuggling, . the Wall Street Journal reported discussion in the business world on the profit potential in legalized marijuana.”). 5. See, e.g., WILLIAM J. BENNETT & ROBERT A. WHITE, GOING TO POT: WHY THE RUSH TO LEGALIZE MARIJUANA IS HARMING AMERICA (2015); ROBERT A. MIKOS, MARIJUANA LAW, POLICY, AND AUTHORITY (2017); Stuart Taylor, Jr., Marijuana Policy and Presidential Leadership: How to Avoid a Federal-State Train Wreck, GOVERNANCE STUDIES AT BROOKINGS (Brookings Inst., Washington, D.C.), Apr. 2013, at 1; ROBIN ROOM ET AL., CANNABIS POLICY: BEYOND STALEMATE (2010); CONTEMPORARY HEALTH ISSUES ON MARIJUANA (Kevin A. Sabet & Ken C. Winters eds., 2018); Erwin Chemerinsky et al., Cooperative Federalism and Marijuana Regulation, 62 UCLA L. REV. 74 (2015); Brianne J. Gorod, Marijuana Legalization and Horizontal Federalism, 50 U.C. DAVIS L. REV. 595 (2016); Todd Grabarsky, Conflicting Federal and State Medical Marijuana Policies: A Threat to Cooperative Federalism, 116 W. VA. L. REV. 1 (2013). For a summary of the competing arguments, compare Tamar Todd, The Benefits of Marijuana Legalization and Regulation, 23 BERKELEY J. CRIM. L. 99 (2018) (summarizing the pro-legalization case), with Kevin Sabet, Marijuana and Legalization Impacts, 23 BERKELEY J. CRIM. L. 84 (2018) (summarizing the anti-legalization case). 6. Archie Bleyer & Brian Barnes, Comment & Response, Opioid Death Rate Acceleration in Jurisdictions Legalizing Marijuana Use, 178 JAMA INTERNAL MED. 1280, 1280 (2018). 7. From the 1960s through the 1980s, the THC content of agricultural marijuana was approximately only 1-3 percent. Today, that number is far higher, reaching 90-plus percent in some cases. See, e.g., KEVIN A. SABET, SMOKESCREEN: WHAT THE MARIJUANA INDUSTRY DOESN’T WANT YOU TO KNOW 32 (2021); Suman Chandra et al., New Trends in Cannabis Potency in USA and Europe During the Last Decade (2008-2017), 269 EUR. ARCHIVES PSYCHIATRY CLINICAL 218 BUFFALO LAW REVIEW [Vol. 69 important one. As Nora Volkow, Director of the National Institute on Drug Abuse, has noted, “increase in THC content raises concerns that the consequences of marijuana use may be worse now than in the past . .”8 Beer and grain alcohol do not have the same per-ounce “kick,” and the same is true of granddaddy’s ganja and today’s weed. Just as no one would base alcohol policy on the psychoactive effects of only beer or wine to the exclusion of distilled spirits, so, too, no one should ignore the current state of scientific knowledge regarding contemporary marijuana. That is critical given the potentially life-shattering effects that long-term consumption of today’s cannabis can have on the labile adolescent brain.9 Yet, scientific issues are not the only ones that need close NEUROSCIENCES 5 (2019); Wayne Hall & Louisa Degenhardt, Editorial, High Potency Cannabis: A Risk Factor for Dependence, Poor Psychosocial Outcomes, and Psychosis, 350 BMJ 1205 (2015); infra note 96. See generally Paul J. Larkin, Jr. & Bertha K. Madras, Opioids, Overdoses, and Cannabis: Is Marijuana an Effective Therapeutic Response to the Opioid Abuse Epidemic?, 17 GEO. J.L. & PUB. POL’Y 555, 573–74, 574 n.71 (2019) (collecting authorities). 8. Nora D. Volkow et al., Adverse Health Effects of Marijuana Use, 370 NEW
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