By Adam Rathge
Judging from recent developments in Canada, Mexico, and the United States it seems we’re on the cusp of a monumental shift in North American drug policy. Indeed, the war on drugs paradigm and its requisite enforcement agencies appear under greater attack than perhaps ever before. This is especially true for marijuana prohibition. In Canada medical marijuana has been widely available for more than a decade, while new Prime Minister Justin Trudeau has repeatedly promised to move toward a system of recreational legalization. In Mexico the Supreme Court recently declared that individuals should have the right to grow and distribute marijuana for personal use, potentially paving the way for legal challenges to the nation’s current drug laws. In the United States nearly half the country now allows medical marijuana, with four states also providing a legal market for recreational marijuana and as many as six more primed to follow this year.
The road forward, however, is anything but clear. Indeed, if history is our guide, there’s a great deal of uncertainty ahead for both the medicalization and legalization of marijuana.
In some ways, the United States has been here before. Beginning in the mid-1960s, a growing belief that marijuana use was both pleasurable and benign led to its increasingly widespread popularity among a cross-section of young, white, middle-class users. This trend also meant that many of those same users found themselves in court facing stiff mandatory sentences for marijuana offenses. Though federal marijuana prohibition began in 1937, strict enforcement and stiffened penalties began in earnest during the 1950s. The Boggs Act and the Narcotics Control Act established mandatory sentencing guidelines for many offenses, including first-time marijuana possession. Penalties ranged from two to ten years in prison with fines of up to $20,000. As young, white, middle-class offenders entered the criminal-justice system, there was a strong outcry to soften the stance on marijuana. In 1970 Congress did just that. Many states followed suit. Between 1973 and 1978 twelve states, encompassing more than a third of the nation’s population, legalized or decriminalized possession up to an ounce. In 1979 marijuana use among adolescents peaked, despite President Nixon’s declaration nearly a decade earlier that drug abuse was “public enemy number one in the United States.”
There are some obvious parallels between those developments and the current shift on marijuana legalization. The past decade has seen the widespread expansion of medical marijuana, the advent of legal recreational markets, and a sharp increase in decriminalization for marijuana possession. There has also been an explosion of scientific research on the issue and an increasing depth of public engagement on the subject. Among many observers there is growing belief that widespread marijuana legalization seems only a matter of time. Yet, history shows that may not be the case. Indeed, the clear momentum for marijuana liberalization in the 1960s and 1970s was promptly turned back during the 1980s. The rollback itself was led by a grassroots, nationwide parents movement. At the heart of “Parent Power” was a zero-tolerance approach that rallied against what they believed was an overly liberal and permissive drug culture. The movement pushed Congress toward a series of new mandatory minimum sentences. Under the “Just Say No” campaign and the Anti-drug Abuse Act of 1986, President Ronald Reagan responded in-kind with a wide net that swept up all drugs, including marijuana. Ushering in more than two decades of stringent drug control policies that are in many ways responsible for the current shift toward prison reform, harm-reduction, and liberalization.
Yet, the potentially cyclical and tenuous nature of the current wave of marijuana liberalization is not the only lesson we might take from the past. Particularly as governments continue to push forward under varied models of medical and recreational regulation. Most of these systems restrict the sale of marijuana to adults aged 21, place restrictions on where people can use marijuana, and limit how much a person can possess in public or grow at home. Nevertheless, states leading the way in devising regulations for an unprecedented new market have faced numerous issues and complexities, both seen and unforeseen.
One of the largest issues has surrounded marijuana edibles. Perhaps not what most people think of when they think marijuana, edibles encompass a range of food and candy products infused with marijuana extracts. In Colorado, for example, recreational edibles have dominated the infused product space and retail edible sales have outpaced the retail sale of flowering marijuana. Figuring out how to regulate these items – including cookies, pastries, gummy bears, and more – has generated a good deal of debate and concern.
Many fear edibles are too kid friendly and look much like candy. There have been reported cases of emergency room visits prompted by accidental ingestion of edibles. Even more seriously, officials have linked the consumption of edibles to a handful of tragic deaths – not by overdose, but by actions taken under the influence of marijuana intoxication. As a result, Colorado lawmakers have attempted to implement new regulations aimed at mitigating these risks, ordering regulators to develop new rules for edibles. These include limiting the amount of THC in each unit, childproof packaging, warning labels for maternal pot use, a uniform symbol on packaging and product alike, and banning the word “candy” on marijuana treats.
What is most fascinating about this from a historical perspective is how many of these issues are not new. Physicians and pharmacists wrote of the potential dangers of cannabis almost immediately following its formal introduction to American medicine in the 1840s. Most medical doctors believed cannabis was both potentially helpful and potentially harmful. These concerns stemmed from the adverse events and feelings that sometimes accompanied the use of cannabis medicines, including distortion of space and time, hallucinations, anxiety, and fear of death. While some of this was attributed to high variability in the potency of cannabis from plant to plant and product to product, the mode of administration also surely helped. Indeed, while there are a few scattered references to cannabis smoking among nineteenth-century Americans, most cannabis preparations were consumed in liquid or edible form.
The concern surrounding “cannabis poisoning,” meant that when individual states began regulating the sale of medicines and poisons in the second half of the nineteenth century, cannabis was often among the substances deemed in need of restriction. States across the country established a broad range of regulations, including standards against adulterated drugs; efforts to combat erroneous or improper packaging and labeling; prohibiting sales to minors; documentation requirements for individual drug transactions; and limits on prescription refills. Most physicians also recommended starting patients on the smallest recommended dose of cannabis and only slowly increasing as necessary – a recommendation now common on the packages of marijuana edibles.
The nature of these restrictions often mirror many of the same concerns now being grappled with by twenty-first century lawmakers. If legalization and regulation proceed apace in North America, the process will surely be an incredibly complex task, but one that could certainly be informed by the lessons and challenges more than a century ago. Indeed, much like marijuana reform advocates might learn from the events the prompted a rollback of “inevitable” legalization in the 1970s, today’s legislators might benefit enormously by taking cues from an era when cannabis was generally legal and available in the United States, but regularly subject to state restrictions.
Adam Rathge is a Ph.D. candidate in the history department at Boston College. His dissertation analyzes the development and transformation of medical discourse, regulatory processes, and social concerns surrounding cannabis between 1840 and 1940. He tweets at @ARRathge.