On November the 8th this year electors in 9 States of the US Federal Union will be voting on specific propositions for changes in State laws governing the production, possession, use, and distribution of marijuana.

This is to be viewed against the background of U.S federal law which effectively outlaws the growth, possession, and use of marijuana, which is regarded as being a controlled substance for the purposes of federal law. Infringements of the law are penalised.

Of the nine states voting the most significant is the State of California, which had originally considered Proposition 19, also known as the California Marijuana Initiative (CMI), on the November 7, 1972 California statewide ballot. This was the first attempt to legalize marijuana by ballot in the history of the United States.  44 years later California is submitting Proposition 64, a voter-led initiative, for decision by the electorate. The proposition which is a 62 page document with an enormous amount of detail (an experienced U.S lawyer claims to have taken 36 hours to have read every single provision of the proposal in order to fully understand both the principles of and the action of the Act). Essentially, the Act is proposing to legalise the public possession of a maximum amount of 1 ounce of marijuana and the private ownership for growth and cultivation purposes of 6 plants. One specific provision of the Act is that all retail sales will be subject to a 15% sales tax. The approval of this proposition will lead inevitably to a fundamental conflict between federal law and state law.

The fierce public debate on this proposition, prior to the November election, has centred on issues relating to control by the state of the production and sale of a substance, which apart from approved medical use, has been in the hands of criminals and in contrast to tobacco and alcohol has not been subject to regulation and taxation. Issues of individual liberty and civil rights have always complicated this debate as well as raising public morality issues. One immediate consequence of this measure being approved will be that the state will no longer be criminalising adults nor imprisoning children. The proposed reforms are estimated to be capable of saving the taxpayer $100 million annually in current costs and in contrast will raise approximately $1 billion in new tax revenues. Supporters of the proposition claim that the majority of these revenues will be allocated to teenage drug education and treatment, law enforcement with respect to driving under the influence, environmental protection from the harm arising from illegal cultivation, as well as providing funds to support local economic initiatives where communities have been adversely impacted by the prohibition of marijuana. Opponents contest this commitment.

“The proposed reforms are estimated to be capable of saving the taxpayer $100 million annually in current costs and in contrast will raise approximately $1 billion in new tax revenues...”

The origins of the Act are to be found in bi-partisan efforts to control and regulate the medical marijuana industry. Additionally, the Act incorporates best practices to be found in the various states as well as lessons from practical implementation of legislative changes elsewhere. More specifically, the recommendations of a commission on marijuana policy have been included in the Act. Strict anti-monopoly provisions and a system to protect small farmers can be seen in the Act so as to counter criticisms that the marijuana industry will be simply overrun by large corporations. One of the dangers of this regulatory approach is that marijuana will be treated as a most valuable cash cow to be milked, at both regional and local level, whenever  deficits appear in other parts of the state budget. An excessive tax burden could well push buyers of marijuana back into the hands of the black market. A most undesirable outcome!

Concern has been expressed about the availability of marijuana to minors under the provisions of the new Act and especially to children. However, the sale of marijuana edibles as “candy” will be expressly prohibited by terms such as “appealing to children and capable of being confused with other candies” although stronger language might have been used. A more serious financial critique has been raised by various activist groups, which claim that the new Act is fundamentally based on a business model rather than using a public health framework such as underpins the production and sale of alcohol and tobacco. Allegations have been raised that large corporations have been channelling money in support of the proposition in the hope that post the election economic developments will allow domination of the market by these aforementioned corporations.

“It is time to move from prohibition to regulation…establish a controlled and regulated market for adults, significantly reduce the harm done to young people under current marijuana laws, and generate substantial revenue for drug education and for the communities most devastated by the war on drugs.”

Clearly there is a clash between a market approach and one based on public health and the Act does not resolve this difficulty. It is worth noting that one of the more credible analyses has been advanced by the “Centre for Tobacco Control, Research and Education”, which is based at the University of California, San Francisco in a paper published in February 2016. The authors claim that the goal of any marijuana regulatory framework should be to treat marijuana regulation like tobacco regulation, allowing sale and use to be legal, while simultaneously creating an environment where falling numbers of people are interested in buying and using it. To minimize public health risks, it is claimed that marijuana regulations in California should be modeled on the California Tobacco Control Programme. One specific point raised is the apparent failure to consider the economic impact of marijuana legalization on increasing health costs in California. This presumes that the marijuana will have a similar impact on general health to that of tobacco. Experience in years to come will prove or deny the truth of this assertion.

Those opposed to the proposition for the legalization of marijuana in general base their concerns on a number of unrelated issues most of which appear to be potential rather than factual. One line of criticism suggests that cartels may buy up land and then monopolize the industry through violence and intimidation. Criminal efforts may depend on those with prior convictions of dealing in large amounts of controlled substances becoming licensed marijuana dealers. Another legal issue concerns driving under the influence of drugs and critics have pointed out that insufficient investment has been made in developing viable testing protocols and speculate as to the quantum and source of the necessary expenditure to enforce them. More significant will be the issue of the residence time of detectable residues in drivers and relating this to a prior consumption event. None of these are insurmountable obstacles!                    

A point of legal debate with respect to juveniles, those under the age of 21, will be the exact location of growing sites since there appears to be confusion as to whether indoor and outdoor facilities are equivalent under the Act ,with respect to the category of offence being committed.             

How will this play out? The support for the proposition is broad-based with support from the California Academy of Preventative Medicine; the California Medical Association; sitting California Lt Gov. Gavin Newsom; bipartisan elected officials in the US Congress and an unprecedented coalition of environmental, business owners, small farmers, civil rights, public safety and social justice groups. A conservative electorate may still have sufficient power to refuse approval once again but the tide is turning and this will surely be the last occasion for them to hold back popular forces of liberty.