The Feds’ Role After Marijuana Legalization

Legalizing the large-scale commercial production, distribution and sale of marijuana, Colorado and Washington State have created an unprecedented situation. Contrary to many people’s assumptions, not even the Netherlands has gone this far.

Marijuana is still illegal under federal law, but the Obama administration has decided not to block legalization in states with “strong and effective regulatory and enforcement systems.” The Justice Department listed eight priorities that should guide federal prosecutors, like preventing distribution to minors and diversion to other states.

Since both states allow profit-maximizing firms to grow and sell marijuana, there is concern they will use advertising to promote consumption by heavy users. Indeed, my co-authored research finds that daily and near-daily marijuana users (who represent about 20 percent of all users) account for roughly 80 percent of consumption. Creating and maintaining high-volume users presumably makes good business sense for the profit-maximizing firms, but it may not be good for public health.

Regulators in Colorado and Washington are working to limit marijuana marketing, but it can be challenging given constitutional protections of even commercial free speech.

This is where the Justice Department can help: U.S. attorneys can target firms that promote marijuana products to adolescents and young adults. Indeed, a footnote in the Justice Department memo states that it is in the government’s interest to make sure marijuana is not “marketed in a manner to appeal to minors.”

Now is the time to make important decisions, especially because the market remains in its infancy. Should firms be able to advertise marijuana candies? How about flavored e-cigarettes infused with hash oil? Should there be special concern about use of social media or sponsored events as a way to market to minors?

Instead of starting with an approach that lent itself more easily to public health protections, voters in Colorado and Washington jumped right to a market model similar to alcohol. With help from the federal government, the states will be better positioned to head off the negative consequences associated with commercialization.

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