An examination of the legal marijuana use age and its enforcement in California, a state where recreational marijuana is legal

March 2021

James C. Fell NORC at the University of Chicago

Traci Toomey University of Minnesota

Angela H. Eichelberger Insurance Institute for Highway Safety

Julie Kubelka NORC at the University of Chicago

Daniel Schriemer Darin Erickson University of Minnesota Contents

ABSTRACT ...... 3

INTRODUCTION ...... 4

METHOD ...... 6 Enforcement of minimum legal marijuana use age of 21 (MLMU-21) laws ...... 6 Pseudo-underage patron entry attempts ...... 7 Sample design ...... 8 Recruitment of pseudo-underage patrons ...... 9 Data collection protocol ...... 9

RESULTS ...... 11 MLMU-21 enforcement ...... 11 Pseudo-underage patron outlet visits ...... 11

DISCUSSION ...... 13

ACKNOWLEDGEMENTS ...... 15

REFERENCES ...... 16

TABLES ...... 19 Table 1: Minimum legal marijuana use age of 21 laws in California ...... 19 Table 2: Marijuana use in the past month among youths ages 12 to 17, National Survey on Drug Use and Health (NSDUH) ...... 20

FIGURES ...... 21 Figure 1: Laws legalizing some uses of marijuana in the United States, December 2020 ...... 21 Figure 2: California — Sample of retail recreational marijuana outlets by region ...... 22

2 ABSTRACT

Objective: Since 2012, 15 states and the District of Columbia have legalized the recreational use of marijuana for adults ages 21 and older. Prior research on enforcement of the minimum legal marijuana use age of 21 (MLMU-21) laws is limited. The objective of the current study was to assess the ease of access to marijuana by underage patrons at recreational marijuana outlets in California, where recreational marijuana was legalized in 2016.

Method: A survey was administered to a random sample of 25 law enforcement agency representatives from across California to better understand enforcement strategies concerning recreational marijuana, and pseudo-underage patrons were sent to 50 randomly selected licensed recreational marijuana outlets in the state to see if they could enter the outlet without showing a valid identification with their age.

Results: Most of the surveyed law enforcement agencies in California do not consider enforcement of the recreational marijuana market a priority and depend mainly on the retail store security to enforce the marijuana use age of 21. At 100% of the recreational marijuana outlets visited, the pseudo-underage patrons were required to show age identification to enter

Conclusions: It appears that California recreational marijuana outlets avoid selling marijuana to underage customers. However, according to a recently published study and an investigative report, there are hundreds of illicit marijuana dispensaries in California. Future studies could investigate whether underage patrons attempt to use fake IDs at licensed dispensaries and whether youth are obtaining marijuana from illicit dispensaries or social sources.

Keywords: recreational marijuana; marijuana control laws; compliance checks; underage marijuana use; pseudo-underage patrons

3 INTRODUCTION

One of the most successful alcohol control policies in the United States was the

establishment of the minimum legal drinking age of 21 (MLDA-21). All states have a version of

MLDA-21, with Congress passing legislation in 1984 pressuring all states to enact the policy if they had not already done so. Even absent strict enforcement, an abundance of research has shown the MLDA-21 policy to be very effective in reducing underage impaired driving (Dang,

2008; Decker et al., 1988; Jones et al., 1992; O’Malley & Wagenaar, 1991; Shults et al, 2001;

Toomey et al., 1996). Now that marijuana has become legal for recreational use in 15 U.S. states and the District of Columbia, it is important to examine laws surrounding the minimum legal marijuana use age of 21 (MLMU-21) to determine if they are effective in reducing access to marijuana by underage youth. There is some evidence from Colorado that traffic deaths involving marijuana-positive drivers increased in the 3 years since the state legalized recreational marijuana compared with the 3 years prior to legalization and that past-month marijuana use by youth increased in the 2 years since legalization compared with the 2 years prior to legalization

(Wong et al., 2016).

Underage drinking laws focus on (a) control of furnishing and selling alcohol to youth,

(b) possession and consumption of alcohol by youth, and (c) prevention of impaired driving by those ages 20 and younger. Strong evidence exists that such laws can reduce underage alcohol- related traffic fatalities (Fell et al., 2016; O'Malley & Wagenaar, 1991; Ponicki et al., 2007;

Shults et al., 2001; Voas et al., 2003), but there is wide variability in the strength of laws and the number of states that have adopted each of them (Fell et al., 2015).

In addition, the effectiveness of MLDA-21 laws depends on enforcement. An early study sent 18- to 20-year-old pseudo-patrons to attempt to purchase a six-pack of beer at randomly

4 selected outlets in three communities (Preusser & Williams, 1992). The success rate ranged from

44% to 97%. The lowest rate (44%) was in a community where law enforcement had recently enforced underage alcohol laws using compliance checks (i.e., underage youth attempted to purchase alcohol under supervision of law enforcement) resulting in 50 publicized arrests of sellers. More recent estimates of illegal sales for young-appearing buyers have ranged from 26% to 39% across cities (Britt et al., 2006; Freisthler et al., 2003; Toomey et al., 2008).

Research on MLDA-21 laws is relevant to marijuana. If underage marijuana use can be reduced, it is reasonable to assume that underage marijuana-impaired driving can also be decreased (Shults et al., 2001). Currently, 15 states and the District of Columbia have officially legalized both medical and recreational marijuana use. An additional 19 states allow medical use of marijuana, while another 14 states permit the use of specific cannabis products for designated medical conditions (i.e., limited medical use, see Figure 1). All 15 states with legalized recreational marijuana prohibit recreational marijuana use by persons under age 21, making it illegal for a person under 21 to purchase, possess, or consume marijuana. However, there is little research on the effectiveness of underage marijuana laws in these states.

Limited, initial research suggests high rates of compliance with MLMU-21 laws. A

Colorado study (Buller et al., 2016) found that 95% of pseudo-underage buyer attempts were denied. The Washington State Liquor and Cannabis Board (2018) reported that 92% of 2,664 compliance checks conducted in the state between 2015 and 2018 resulted in the sales being denied. Although this is encouraging, we have not identified studies examining the ease of underage access to marijuana in other states that have retail marijuana outlets. This includes the largest state to legalize recreational marijuana — California.

5 California appears to have strong MLMU-21 laws (Table 1). However, California does not have the following laws for marijuana that it has for alcohol: (a) a law prohibiting the use of false identification for purchases, (b) a social-host liability law, and (c) mandatory responsible sales training.

There is a need to document underage marijuana use enforcement strategies and determine the ease of access to marijuana by youth under age 21 at marijuana outlets. This information will help assess the effectiveness of current underage marijuana laws. Conducting this assessment in the largest U.S. state, California, is the first step in this process. The basic objectives of this study were to (a) document current levels of enforcement of MLMU-21 laws in

California and (b) assess the ease of access to marijuana by underage patrons at retail establishments in California. The penalty for furnishing marijuana to someone under age 21 is up to 6 months in jail and up to a $500 fine for a first offense.

METHOD

To meet these objectives the enforcement strategies reported by a sample of enforcement agencies in California were documented, and pseudo-underage entrance attempts in a random sample of marijuana outlets in California were conducted. All data collection was completed prior to the COVID-19 pandemic.

Enforcement of MLMU-21 laws

A stratified random sample of 50 local police and other enforcement agencies (e.g., office of cannabis management, county sheriff, city manager) were contacted and surveyed about enforcement strategies used for MLMU-21 laws in their community and their local recreational marijuana retail outlet(s), the presence of an illicit marijuana market in their community, and the prevalence and enforcement of marijuana-impaired driving. Agency representatives were

6 contacted by phone and e-mail to collect information on the agency’s enforcement strategies.

The enforcement survey was completed by 25 agencies.

Pseudo-underage patron entry attempts

An important goal of this study was to assess compliance with MLMU-21 laws. This was

accomplished by conducting pseudo-underage entry attempts at retail recreational marijuana

outlets. To begin this process, the number and locations of all licensed recreational marijuana

retail outlets in California were documented. A stratified random sample of retail outlets in

California was selected for pseudo-underage entry attempts. Two persons 21 years old or older who looked younger than 21 (as determined by an age assessment panel) were recruited and trained to serve as pseudo-underage patrons. Using this strategy, law enforcement was not involved since each pseudo-underage-patron was legally able to enter and purchase marijuana in

a licensed outlet under California state law.

In California, patrons are supposed to be asked for age identification to enter the outlet. If

the pseudo-underage patron was asked, they said that they did not have an age ID. If they were

denied access to the outlet, this would be considered compliant. If they were let into the outlet

without ID, this would be considered noncompliant. If they were denied entry without showing

an age ID, the pseudo-underage patron returned to their rented car and obtained their ID. They

returned to the outlet and showed their ID to enter. While in the outlet, they made specific

observations and recorded data on their smartphone on the first data collection form. The

pseudo-underage patron then returned to their partner in the car and filled out a second form with

observations they made in the outlet.

7 Sample design

The goals of the sample design were to provide statistically reliable estimates while reducing pseudo-observer costs. Marijuana retail outlets tend to cluster in densely populated

areas. Importantly, to make the observation outcomes representative of the whole state, all retail

outlets had a chance of being sampled. Outlets that were clustered together had higher chances of

being selected, while those in remote locations had lower chances of being selected. This helped

to minimize travel distance for the pseudo-underage patrons because outlets that are clustered

were more likely to be selected jointly.

To draw the sample of 50 recreational marijuana outlets in California, the names and

addresses of the marijuana outlets with active licenses were obtained through the California

Bureau of Cannabis Control website (https://online.bcc.ca.gov/bcc/). The outlets were then

geocoded, and four distance measures were created for each outlet. The first distance measure

represented the distance to the next nearest outlet from the reference outlet. The second distance

measure was the second nearest outlet and so on. Then a stratified probability proportional to

size sample was selected, where the strata were three geographical regions of California (North,

Central, and South) (see Figure 2) and the size measure equaled the reciprocal of the first

distance measure. The number of outlets chosen in each stratum was proportional to the number

of outlets in the region on the sampling frame of 632 outlets with addresses that could be

geocoded.

In case of unforeseen challenges in attempting to enter the selected outlets (e.g. store

closures, reduced hours of operation), two alternate outlets were chosen for each selection so that

the pseudo-underage patrons would have nearby alternatives. The alternate outlets were the next closest outlet that had not already been selected in the original sample.

8 Recruitment of pseudo-underage patrons

Pseudo-underage patrons were required to be age 21 or older (i.e., of legal age to purchase) but appear to be under age 21. Candidates were recruited through a number of online

job boards and asked to deliver lines in front of an age assessment panel of seven to nine individuals of varying ages, at least three of whom had experience serving alcohol in a bar or restaurant (and thus had experience estimating age in a professional setting). Of the 10 candidates that auditioned, five were determined by the panel to appear to be under the age of 21.

All five candidates were interviewed and the position was offered to the top two candidates, a male (age 22) and a female (age 23). In past studies using this same protocol (Britt et al., 2006), the mean estimated age for the pseudo-underage patrons was 18.9 for pseudo-underage patrons visiting off-premise alcohol establishments, with a perceived age range from 17 to 20. The mean actual age of the pseudo-underage patrons in prior studies was 22.6 years with a perceived age range from 21.1 to 24.8.

Both selected pseudo-underage patrons for this study participated in a training session at the University of Minnesota to learn the study protocol. The pseudo-underage patrons were

instructed to dress casually and wear little or no make-up, jewelry, or facial hair. This protocol

was adapted from one that has been used successfully in previous studies (Forster et al., 1994,

1995; Toomey et al., 1999, 2004, 2006; Wolfson et al., 1996a, 1996b).

Data collection protocol

All data collection methods were approved by NORC’s Institutional Review Board (IRB)

and the University of Minnesota’s IRB. At each retail outlet visited, the pseudo-underage patrons

attempted to enter the outlet without showing ID. If asked for ID, the pseudo-underage patrons

truthfully said they did not have their ID to see if they would be allowed entry without the ID.

9 The protocol specified that if allowed in without an ID, they would enter the outlet and make

observations. If not allowed in without an ID, the pseudo-underage patrons returned to the car,

waited for a couple of minutes, and returned to the outlet saying that they had found their ID in

the car.

Upon entering the outlet, the pseudo-underage patrons began to complete the first of two

data collection forms on their smartphone. The pseudo-underage patrons were instructed to look

as if they were simply browsing the store while looking at their phone, when in reality they were

completing the first data collection form. After finishing the first data collection form, the

pseudo-underage patrons would return to the car, where they completed the second data

collection form on their phone. The pseudo-underage patrons and team leaders also spoke about

anything unusual that was observed at each field site, making careful note of these observations.

Once the observation was complete, the team would continue to the next scheduled field site.

The pseudo-underage patrons were instructed not to purchase any cannabis products and agreed to this term in writing in advance of traveling to California. In order to minimize suspicion during site visits, the pseudo-underage patrons were asked to change their appearance

slightly (using a hat, glasses, etc.) between site visits. Throughout the training, it was made clear

to the pseudo-underage patrons that safety was a top priority. In the event that they felt their

safety was threatened, they were told to leave the dangerous situation as quickly as possible.

10 RESULTS

MLMU-21 enforcement

Most law enforcement agencies (94%) said that 10% or less of their agency resources

were spent on marijuana law enforcement. Forty-two percent of agencies reported conducting

age 21 compliance checks at retail outlets, and 45% reported that store employees are required to

complete responsible marijuana sales training.

Many (83%) believed that underage users get their marijuana from the illicit market as opposed to the legal market. Fourteen percent said the illicit market is smaller since the legalization of recreational marijuana, whereas 32% said the illicit market is larger since the legalization of recreational marijuana.

With regard to marijuana-impaired driving, 79% of agencies believed this behavior was somewhat or very common in their jurisdiction, and 26% said they conduct enforcement specific to marijuana-impaired driving (separate from alcohol-impaired driving enforcement efforts).

Some agencies (13%) had participated in a media campaign to publicize the enforcement of marijuana-impaired driving in the previous year.

Pseudo-underage patron outlet visits

The two data collection teams were able to collect data at 47 of the 50 retail outlets. Of the 47 outlets at which observations were made, 10 were alternate outlets. The three field sites and their alternates that the team was unable to observe did not sell cannabis for recreational use.

In some cases, these locations sold cannabis for medical use only. In other cases, the indicated locations were abandoned buildings or other businesses entirely. Interestingly, one site and its alternates were located in a county that does not allow the sale of cannabis for recreational use.

11 In the 47 observations that were made, the pseudo-underage patrons were never able to

enter an outlet without showing identification indicating they were 21 or older (a 100%

compliance rate). At about half of the outlets visited, the ID was checked before entry, and at the

other half, the ID was checked as the person entered. In two of the observations, customers were seen using products inside the store. In one of these cases, the store being observed was offering free samples of edibles, which is illegal in California.

In terms of products offered, 20 outlets (42.6%) offered all of the products listed on the observation form (candy bars, bite-sized candy, beverages, baked goods, pre-rolled flower/bud products, flower/bud products by weight or bulk, concentrates, vapes, tinctures, and topicals). At many of the outlets, store staff emphasized the wide variety of products offered. The most commonly promoted products were flower/bud products by weight or bulk (34%), pre-rolled flower/bud products (34%), and candy (26%). In addition to the products listed on the data collection forms, it was observed that cannabis suppositories, gel capsules, and CBD skin patches were each for sale in at least one outlet.

Security was present at 37 outlets (79%), and most often consisted of a private security officer in uniform outside of the entrance. Occasionally, these security officers were in plain clothes; no uniformed police officers were observed at any of the outlets. In the 10 stores that did not have a security guard, a member of the retail staff checked the observer’s ID. Many of these stores were relatively small and had few staff members.

In 15 outlets (32%), an electronic ID scanner was used. At stores without ID scanners, most personnel checking ID quickly glanced at the card, rather than carefully examining it.

Thirty-four outlets (72%) did not have any signs outside or at the door stating that purchases or entry by those under age 21 is prohibited. Only 11 outlets (23%) had signs inside the outlet about

12 the age restriction, and no outlets had a sign in the outlet stating there would be no sales to

obviously intoxicated individuals. This signage is not required in California but is considered a

good practice.

DISCUSSION

A sample of local enforcement and regulatory agencies surveyed in this study do not

consider underage purchasing of marijuana at licensed retail outlets to be a high priority and depend mainly on the retail store security to enforce the marijuana use age of 21 in California.

However, almost half of the agencies reported conducting at least some compliance checks.

Based on our findings, including the 100% compliance rate for ID checking, this is probably an efficient allocation of resources. Many resources apparently go into enforcement efforts targeted at the illicit market.

This study brings up a number of potential research questions about the illicit marijuana market (i.e., unlicensed outlets or the black market) in California. An article from the Los

Angeles Times (Queally & McGreevy, 2019) reported that close to 3,000 black market marijuana dispensaries were discovered via an audit of the popular website “Weedmaps”

(https://weedmaps.com). In the law enforcement survey conducted for this study, there was

disagreement among enforcement agencies about whether the illicit market is larger (32%) or

smaller (14%) following recreational marijuana legalization. Unger and associates (2020) found

that illicit outlets were not equally distributed across all neighborhoods in California. Illicit

outlets were more common in lower socioeconomic communities and communities that had a

higher proportion of African Americans and Hispanics. Illicit outlets may be less controlled.

Nicholas and associates (2019) found that illicit alcohol outlets may be more likely to sell

alcohol to underage patrons and sell products that are more appealing to youth and are more

13 potent. More research on the illicit market is needed, This includes an assessment of why such a

large number of illicit outlets might exist, whether there are biases in terms of who receives a

license, and whether or not these unlicensed establishments exacerbate health inequities across

neighborhoods.

Given the current high compliance rate, it seems unlikely that most underage youth who

are using marijuana in the state of California are buying the marijuana from licensed outlets.

However, the extent to which young underage patrons may use a fake ID to get into dispensaries

is unknown, as is compliance with MLMU-21 laws among illicit outlets. Further research is

needed on these issues. Underage youth may also obtain marijuana from social sources (e.g., an

older friend), which commonly occurs with alcohol and tobacco.

If noncompliance with MLMU-21 laws were prevalent, we might expect to see an

increase in youth under age 21 reporting marijuana use in states that have legalized recreational

use. However, findings from the National Survey of Drug Use and Health (NSDUH) (Substance

Abuse and Mental Health Services Administration, 2020) show little change in reported past-

month marijuana use among youth ages 12–17 in states with legalized recreational marijuana

(Table 2). In California, this age group reported slight declines in past-month marijuana use before and after recreational legalization (from 8.32% in 2014–15 to 7.05% in 2017–18). Results for ages 18–20 are not reported for the NSDUH, and to our knowledge, there are no surveys that focus on marijuana use among this age group. More research is needed to assess the impact of marijuana legalization on 18- to 20-year-olds.

A limitation of this study is that all the results and conclusions are based on one state.

California is just one of the current 15 states plus the District of Columbia to have legalized recreational marijuana. The results could be vastly different in some of the other states with

14 legalized recreational use. California appears to have strong MLMU-21 laws; however, other

states with legal recreational marijuana may have better laws. More legal research would be

needed to make that determination.

In summary, the present study found little evidence of noncompliance with the legal

marijuana use age in California; however, there is still much that is unknown about underage marijuana use (e.g., where young people obtain marijuana, whether use is increasing among people ages 18–20) and to what extent these results generalize to other states.

ACKNOWLEDGEMENTS

The authors acknowledge the contributions of methodologists Evan Herring-Nathan,

Becki Curtis, and Ed Mulrow of NORC at the University of Chicago; Sue Thomas and Ryan

Treffers of the Pacific Institute for Research and Evaluation; and Allan Williams. This study was

funded by the Insurance Institute for Highway Safety.

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18

TABLES

Table 1

Minimum legal marijuana use age of 21 laws in California

Topic Policy Citations Possession Prohibited Cal. Health & Safety Code § 11357 Cal. Health & Safety Code § 11362.1 Consumption Prohibited Cal. Health & Safety Code § 11362.1 Internal possession a No law Purchasing Prohibited Cal. Bus. & Prof. Code § 26140 Cal. Health & Safety Code § 11362.1 Furnishing b Prohibited Cal. Bus. & Prof. Code § 26140 Cal. Health & Safety Code § 11362.1 False ID No law Minimum age for sellers 21 and over Cal. Bus. & Prof. Code § 26140 Social-host liability No law DUID per se c No law Use/lose d 1 year Cal. Health & Safety Code § 11357 Cal. Health & Safety Code § 11362.1 Cal. Veh. Code § 13202.5 Responsible marijuana sales No law training a Testing for the presence of marijuana in oral fluid or blood. b Both noncommercial and commercial. c Driving under the influence of drugs (DUID) is generally prohibited by Cal. Veh. Code § 23152. d Penalty imposed for underage purchase, possession, or consumption.

19

Table 2

Marijuana use in the past month among youths ages 12 to 17, National Survey on Drug Use and Health (NSDUH)

2009– 2010– 2011– 2012– 2013– 2014– 2015– 2016– 2017– Yeara 10 11 12 13 14 15 16 17 18 Colorado 2012 9.91% 10.72% 10.47% 11.16% 12.56% 11.13% 9.08% 9.02% 9.39 Washington 2012 8.01% 9.59% 9.45% 9.81% 10.06% 9.17% 7.93% 8.96% 9.94 Oregon 2014 9.46% 10.26% 9.86% 9.59% 10.19% 9.42% 9.77% 10.35% 9.71 Alaska 2014 8.64% 8.82% 10.01% 8.73% 9.19% 10.64% 10.43% 8.84% 7.88 DC 2014 9.31% 10.60% 9.35% 9.89% 10.56% 8.85% 8.07% 8.26% 8.47 California 2016 8.60% 9.43% 8.83% 7.80% 8.74% 8.32% 7.33% 6.93% 7.05 Maine 2016 8.94% 9.14% 8.94% 9.26% 9.90% 10.01% 9.70% 9.89% 10.31 Massachusetts 2016 10.27% 11.32% 10.58% 8.90% 8.88% 9.22% 8.68% 8.91% 9.33 Nevada 2016 7.61% 8.53% 8.77% 8.33% 7.97% 7.39% 8.65% 8.82% 9.17 Note. DC = District of Columbia. Source: https://pdas.samhsa.gov/saes/state a Year that possession of marijuana for recreational use was legalized.

20

FIGURES

Figure 1

Laws legalizing some uses of marijuana in the United States, December 2020

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Figure 2

California — Sample of retail recreational marijuana outlets by region

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