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Regulating Recreational Use of Marijuana and the Role of Public Health Law

posted on Wed, Nov 13 2013 1:45 pm by Andy Baker-White

In January 2011 I received a call from a local health official with questions about her state’s medical marijuana law. Toward the end of our conversation she asked if any state allows the recreational use of marijuana. I told her that no state allowed the recreational use of marijuana, and that an initiative to allow recreational use in California failed in November 2010. I remember joking that if it couldn’t pass in California it would be a long time before it happened in any other state. Well, the joke was on me.

Less than two years after my conversation with the local health officer, two states — Colorado and Washington — legalized the recreational use of marijuana. In both states the issue was decided by voter initiative, which means it was decided in broad terms. In Colorado, voters approved permitting anyone 21 years or older “to consume or possess limited amounts of marijuana” and regulations for the licensing of facilities to cultivate, manufacture, test and sell marijuana. The Colorado initiative also permits local governments to regulate or prohibit such facilities and requires the taxation of marijuana sales and specifies the spending of such taxes.  Washington’s ballot proposal authorized “the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older, and add a new threshold for driving under the influence of marijuana.” Colorado and Washington are now figuring out how recreational use will be regulated. Colorado’s new rules for recreational use can be found here and Washington’s here.

The federal government has decided not to challenge state laws legalizing recreational use as long as states maintain strict rules involving the sale and distribution of marijuana. The areas of regulatory emphasis for the federal government include preventing distribution to minors, preventing revenue from going to illegal enterprises, stopping drugged driving, keeping marijuana from crossing to states where it’s illegal, preventing marijuana activity from being used as a cover for other illegal drug activity, and stopping marijuana from being grown on public land.

Public opinion continues to shift on recreational marijuana. More states are considering the legalization of marijuana and this past Election Day the city of Portland, Maine became the first city on the east coast to legalize marijuana while three cities in Michigan joined several other cities in that state to decriminalize possession of minor amounts of marijuana.

What’s been the public health response be to the legalization of marijuana? In one word, slow. A health impact assessment for Colorado’s packaging regulations was conducted by the Pediatric Injury Prevention, Education and Research Program at the Colorado School of Public Health. The American Public Health Association (APHA) has not updated its policy statement on the regulation of recreational marijuana.

Questions about the regulation of marijuana remain. Eric Kuhn, Assistant Attorney General in the Colorado Attorney General’s Office and public health fellow with the National Attorneys General Training and Research Institute, spent the past year examining some of these questions. I had the opportunity to hear Mr. Kuhn’s recent presentation at this year’s APHA Annual Meeting in Boston, where he posed a few: How should states address access to recreational marijuana by adolescents? How will states address drugged driving? What about quality control issues in order to protect the consumers of recreational marijuana? And, as Mr. Kuhn carefully points out, how can local health departments assist with these issues when dealing with federal requirements which prohibit their involvement? It’s clear that those in public health law have a role to play.

This blog post was prepared by Andy Baker-White, J.D., M.P.H., associate director, for the Network for Public Health Law – Mid-States Region at the University of Michigan School of Public Health. 

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. The views expressed in this post do not represent those of the Robert Wood Johnson Foundation.

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