The First Drop: Compromise on Legalization, Don’t Compromise Legalization

The name Alex Berenson is likely anathema to most everyone interested in the incorporation of cannabis into food and beverage brands; through his book, “Tell Your Children,” he’s become one of the country’s best-known anti-legalization voices.

Through his writing, public appearances and social media platform, Berenson has raised the issue of “marijuana-induced psychosis” as a real concern for legalization gatekeepers, nipping at the “better than booze, better than tobacco, better than opiates” sell that pro-cannabis supporters have been pitching.

Berenson’s recent work has earned him plenty of attention, but his stance against what many regard as a less harmful component of the sin economy has also been derided as fearmongering and polemicism. Even some of the study authors he’s cited have taken issue publicly with the conclusions Berenson reaches in Tell Your Children.

But I didn’t call Berenson up to attack his stance. Instead, I spoke to him about compromise. A recent column of his seemed to point more toward the “when” side of the policy discussion rather than the flat denial of the product class as viable. While he’d argued that recent defeats in New York and Rhode Island might have signaled a swerve from the perceived invincibility of the legalization movement, he also indicated he believes that money and momentum are pushing the cannabis movement forward. The collective statehouse stumbles, he wrote, may offer both anti-legalization forces facing inevitable defeat – and pro-legalization groups bent on tearing down the gates – a chance to figure out a path forward for legal cannabis, albeit in a heavily regulated marketplace.

Certainly, Berenson doesn’t want to have to make that compromise, and he’ll continue to beat the drum toward prohibition.

“The psychosis risk is off the charts,” he told me.

But as a prohibitionist, he understands that right now he’s likely fighting a losing battle, with polls showing about 65% of Americans are in favor of federal legalization.

Nevertheless, the legalization tailwinds could cut out quickly if there are instances of psychosis that support Berenson’s fears; the notion that marijuana makes you crazy helped make it illegal in the first place, after all.

So we talked about sin businesses and the ways they might have been approached if the risks had been studied. Look at alcohol, a massive killer; look at tobacco. On the prescription drug side, look at the thousands of deaths due to opium addiction. Berenson takes issue with the way that state medical marijuana programs have been used, in his view, as a kind of Trojan horse to usher in recreational usage in many states. He’d take further issue, I believe, with statements from the pro-legalization side that the relatively minimal negative societal impact those medical facilities have led to is a strong argument in favor of cannabis. He’d point, again, to his findings on psychosis, and concerns about stoned driving.

When it comes to cannabis, there’s one constant: a gaping lack of information and sanctioned study, which is something that should accompany any kind of billion-dollar bet. As I write this, a pair of studies served as examples of the kind of work that can be done when there’s more latitude for research. One survey, conducted by JAMA Pediatrics, suggested that marijuana use among high school students may actually decline in recreational-use states (age restrictions and the undermining of local dealers were suggested as possible causes, although teens have always found their way around the former, for sure). In another, Canadian scientists are discovering that a person’s reaction to marijuana – the enjoyment or paranoia of their “trip” – may be determined by the part of their brain that is most sensitive to THC.

We wouldn’t know either of these things without the ability to study marijuana – and that’s something that’s still hampered by federal bans. What’s frustrating is that Berenson’s concerns, were they not over a product that is still illegal, could have the benefit of real, current study, and would be addressed on equal footing with other “sin” businesses.

I believe the cannabis business deserves the chance to refine on-the-fly. After all, there have been more dangerous businesses that have gotten that chance. Changes to the legal drinking age in the 1980s led to a massive reduction in the number of teen deaths due to drunk driving. It’s a common-sense alteration in the regulation of a sin business that had massive positive impact. We also know there’s massive good that can come from legalization: from a straight racial justice standpoint alone, changes in marijuana possession and use laws could have a massive positive impact on the trajectory of young black men, who have been disproportionately hurt by our current drug laws.

There are years of accumulated data on the harmfulness of alcohol and tobacco, and of sugar as well; it dwarfs marijuana’s downside. Cannabis entrepreneurs nevertheless need to consider the potential for harm that they are aware of, or discover, as they do business. That’s at the heart of all product liability.

I’d argue that, especially given the wide berths afforded existing “sin” businesses, cannabis absolutely represents a comparable trade-down in danger. But I’d also say that participants in the cannabis business, as it enters the space of true legalization, need to think about it as more than a revenue generator, and even as more that a way to correct social injustices. I’d urge those who are looking to make their money in the business to consider that principled regulation – the result of careful negotiation and discussion, taking into account even the most strident concerns of the anti-legalization forces – should take consumer health into account as much as any other factor. Quiet the critics. Accept labeling copy that makes it clear you’re taking this seriously. Market responsibly.

Cannabis has long lived outside the law – Dylan wrote that to live that way, you must be honest. The cannabis business should make every effort to stay that way, even when the laws change to embrace it.