Controlling underage access to legal cannabis.

• Author: Davenport, Steven
• Position: Western Reserve University School of Law Interdisciplinary Conference on Marijuana, Federal Power & the States

CONTENTS INTRODUCTION I. BACKGROUND II. HARMS AND POLICIES III. OUTLINE IV. STATE AND FEDERAL POLICIES TO LIMIT UNDERAGE USE A. Other Goals B. Avoiding the Criminalization of Youth and Adults C. Eliminating Black Markets and improving Public Safety D. Introducing Cannabis Public Health Regulation V. METHODS OK UNDERAGE ACCESS AND FORECASTS FOR PARALLEL MARKETS VI. LESSONS FROM ALCOHOL AND TOBACCO A. Controlling Store Access B. Controlling Other Forms of Access C. Interactions Between Store and Social Sources VII. IMPLICATIONS FOR WASHINGTON'S AND COLORADO'S ABILITY TO CONTROL CANNABIS SUPPLY TO UNDERAGE USERS A. Controlling Store Purchase Will Bt Easier Under New Regulations B. Controlling Cannabis Resale Is Especially Difficult VIII. COMPARISON OF POLICIKS/SCENARIOS CONCLUSION ABSTRACT

Most proposals for legalizing cannabis production and sale ban sales to minors. But such bans are not self-executing. There is at least the risk--if not the overwhelming probability--that legal availability for adults will change price and availability for minors in a way that will increase the prevalence of underage use. This is especially problematic with respect to use by younger adolescents and to heavy use. It might be possible, with vigorous enforcement, to reduce the impact of legalization on use by minors, but the costs and unwanted side effects of such efforts may make them, on balance, inadvisable. The example of alcohol shows that it is possible to make it difficult for minors to buy directly from licensed stores and that doing so reduces alcohol consumption and alcohol-related harms in the target population. But strong efforts to prevent minors from buying cannabis illegally from adults, who in turn buy it from licensed stores, may not be advisable. With minors now accounting for approximately 25 percent of the volume in the cannabis markets, giving strictly illicit producers and vendors a firmer grip on the underage market would undermine the goal of reducing illicit-market harms, including violence, the need for enforcement, and the supply of products of uncertain potency, perhaps containing harmful contaminants. If this is so, then the harms associated with increased juvenile use are not entirely separable from the decision to make cannabis lawfully available to adults.

INTRODUCTION

As states, led by Colorado and Washington and now joined by Alaska and Oregon, begin to legalize commercial production and sale of cannabis, one concern is the risk of increasing use among minors. In the Department of Justice guidance on prosecution of state-legal cannabis-related activity, controlling access to minors is listed among the eight federal priorities.

Most legalization proposals--including those passed in Colorado and Washington--forbid sales to purchasers under twenty-one, matching the rule about alcohol in all fifty states. But making a rule does not ensure that the rule will produce its desired results. Legally produced cannabis will still reach minors, either because minors succeed in purchasing directly from licensed outlets or because adult buyers illegally give or resell what they have legally purchased.

The appropriate policy response is not obvious. If efforts to limit access are inevitably flawed, how vigorously should they be pursued? Should efforts focus only on suppressing store purchase or extend to include "gray markets"--meaning the diversion of product that would be legal for adults? These tensions also exist with alcohol and tobacco, but cannabis is different inasmuch as there already exists a large illicit supply system able and willing to deliver cannabis products to minors. Suppressing gray-market access could inadvertently bolster that purely illicit market, undercutting two prime goals of cannabis legalization: reducing illicit activity and reducing cannabis-related arrests.

This Article identifies three policy alternatives and contrasts their pros and cons. An "aggressive" approach seeks to suppress cannabis supply through all channels, even if in vain. A "permissive" approach grudgingly tolerates gray market access as preferable to black market supply. A "long game" approach begins permissively, waiting until the illicit market shrinks to some target level from which it might not easily rebound, and then imposes "aggressive" controls on all channels.

1. BACKGROUND

   Cannabis legalization appears increasingly to be a question of when and how, not whether. Washington and Colorado became the first jurisdictions to legalize commercial production, distribution, and sale of large-scale quantities for nonmedical use in 20121; Uruguay did so in 20132; Alaska and Oregon followed suit in 20143; and other states and nations are likely to follow. (4) Just more than half of Americans (51%) support legalizing cannabis use. (5)

   Designing legal cannabis regimes requires policymakers to weigh competing goals, project the effectiveness and unintended consequences of tactical choices, and perhaps consider some unorthodox strategies. Here we consider one such unorthodoxy: the possibility that legal-cannabis regimes should not try very hard to prevent youth from obtaining cannabis from cannabis stores, at least indirectly. That stands in complete contrast to all the received wisdom from the alcohol and tobacco literatures, but we argue that such a seemingly perverse strategy may make a certain pragmatic sense, at least in the short to medium run.

2. HARMS AND POLICIES

   In drug policy discussions it is often useful to distinguish among alternative means of reducing total drug-related harm: prevalence reduction, quantity reduction, and harm (or harmfulness) reduction.(6) If the only goal were to minimize youth use, it might be advisable to restrict all kinds of access to the maximum extent possible. However, even if one could somehow prevent twenty-one-year-olds from making proxy buys on behalf of their under-twenty-year-old friends, many of those under-twenty-year-olds might simply continue their current practice of buying on the black market.

   Black markets generate substantial harms above and beyond mere provision of the substance. Those harms include crime, violence, and corruption, but also a potentially more dangerous product, since black-market cannabis is not quality-tested or labeled for potency. So cannabis control policy faces a dilemma: minimizing the number of underage cannabis users might not minimize total harm once one factors in the harms of the black market.

   State and federal policies stress the importance of preventing increases in underage access. Their manifestations thus far focus on deterring state-licensed stores from selling to underage users, by way of frequent inspections and available sanctions. But these policies are not fully fleshed out and are likely to be guided also by competing goals, such as avoiding youth criminalization and reducing black market activity. (One of many unresolved questions with cannabis policy is how to define an "underage cannabis user." Our usage of "underage" will follow Washington's and Colorado's law, since we suspect that their decision to make twenty-one the minimum legal age may be emulated in future legislation.)

3. OUTLINE

   The basic goals and frameworks of state-level cannabis control policy are outlined in Part IV.

   It is another question entirely to ask whether any given strategy will be successful in furthering its stated goals. That depends on how users respond to prohibition tactics and also how producers and distributors in the black and gray markets respond to enforcement pressure and to changing economic tides. For instance, if one method of underage access is blocked, will that lower youth use of cannabis, or will youth simply access via other channels? Will the answer for today be the same as for ten years from now, when the legal cannabis economy is better established? Part V considers these dynamics.

   These issues are not unique to cannabis. Though cannabis has frequently been compared with alcohol--as in the tagline of Colorado's Amendement Sixty-Four, "The Regulate Marijuana Like Alcohol Act"--in some respects a better comparison may be with tobacco. Cannabis currently supports a thriving black market; alcohol does not. Indeed, there remains considerable black market activity even in the two states that have already established legal markets. The mere act of legalization does not necessarily lead all criminals who had been supplying that drug to retire immediately.

   Tobacco is an intermediate case, with little to no black market but a substantial "gray market," meaning illegal distribution and sale of product that is legally produced. Gray-market activity helps youth evade age prohibitions and all users evade taxes. Furthermore, there is the very real possibility that today's tobacco companies may move into the marijuana product space after national legalization. (7) Part VI reviews evidence on the effectiveness of retail enforcement intended to control youth access to alcohol and tobacco. Part VII applies these lessons to cannabis control in Washington and Colorado, showing where control efforts might be better or worse advantaged.

   A reasonable policy response would consider all these competing goals and form hypotheses about the intended and unintended effects from different tactics. Part VIII proceeds accordingly. First, it identifies two dichotomous policy responses: an "aggressive" approach that attempts to combat all channels of cannabis access simultaneously and a "permissive" approach that tolerates some gray market access but maintains a strict prohibition on black-market sale. Later, we introduce another variant: a "patient" approach, which begins as permissive but later imposes aggressive-style controls.

4. STATE AND FEDERAL POLICIES TO LIMIT UNDERAGE USE

   Even if one believes legalization can outperform prohibition, it still has disadvantages. So legalization schemes should be designed in ways that reduce those potential...