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The Daily Signal
The Government
Should Change How It Regulates Marijuana
Paul J. Larkin Jr.
April 26, 2018
Whether and how to regulate marijuana use has been in the news again
recently. Currently, federal laws classify marijuana as a “Schedule I”
(unhelpful and dangerous) drug. This means that physicians cannot
prescribe marijuana for therapeutic or recreational purposes.
Since 1996, however, numerous states have revised their state criminal
laws to permit marijuana to be sold and used for medical purposes. Some
of these states (and the District of Columbia) even allow marijuana to
be sold for recreational use by adults.
And Sen. Cory Gardner, R-Colo., recently announced that he had reached
a deal with President Donald Trump to modify the federal criminal code
regarding marijuana.
In addition, Sen. Chuck Schumer, D-N.Y., said he will introduce
legislation to leave it up to the states to decide whether to prohibit
the distribution of marijuana.
Have the president and Gardner agreed that states should be free to let
people use marijuana as the states see fit? Has Schumer correctly
guessed which way the wind is blowing? That remains unclear.
Reports about the Trump-Gardner deal and Schumer proposal raise several
additional questions:
Will the federal government pursue an entirely new policy regarding
marijuana regulation?
If so, will that new direction leave decision-making entirely up to the
states?
If not, will the federal government still play a role?
Will that change lead to a net social plus or minus?
The answer to each of those questions is the same: “Maybe yes, maybe
no.” That’s because there is another possible option lying between
“absolute federal ban” and “complete state freedom.”
Federal law has prohibited marijuana cultivation, processing, and
distribution since the Marijuana Tax Act of 1937. That date is
significant because the following year Congress passed the Federal
Food, Drug, and Cosmetic Act. The law prohibited interstate commerce of
“adulterated” food and drugs.
The Federal Food, Drug, and Cosmetic Act also directed the commissioner
of food and drugs to examine both products to make sure they were safe
for interstate distribution.
In 1962, Congress also prohibited the distribution of new drugs unless
the Food and Drug Administration commissioner first found them to be
both “safe” and “effective.” Since then, Congress has consistently
reiterated that the FDA should be responsible for making those
decisions—not Congress, not the states, not the public.
It’s an important matter. We do not decide by plebiscite which drugs
should be sold to the public. America has resolved that experts should
make that decision because the average person lacks the education,
training, and experience to answer the medical question of whether a
particular drug is safe and effective.
Why should we treat marijuana differently?
For more than two decades, states have decided to reconsider their
marijuana laws and permit people to use marijuana for medical or
recreational purposes even though the distribution of marijuana is
forbidden under federal law.
Three presidents—Bill Clinton, George W. Bush, and Barack Obama—each
failed to force Congress to decide whether federal law should also be
re-examined.
Trump may be willing to do what his three predecessors should have
done. It is time for Congress to take up this subject once again.
Great nations, like great people, always must be willing to reconsider
their laws in light of new developments. It makes sense for Congress to
revisit this issue.
But that does not mean senators and representatives should act in a
vacuum, without regard for the nation’s designated authority on food
and drug safety. Nor should members of Congress simply act according to
polling results.
We do not let the public decide which antibiotic, antiviral,
antifungal, or chemotherapy drugs can be marketed. There is no reason
to treat marijuana differently.
Congress has never let the FDA decide this issue, because federal law
has treated marijuana as contraband since the year before the Federal
Food, Drug, and Cosmetic Act became law. Maybe we should treat
marijuana in the same way that we treat any other new drug that someone
argues should be used therapeutically.
No healthy democracy can afford to glibly disregard the opinions of
experts on matters within their expertise. Since 1962, the United
States has decided to trust the FDA with the responsibility to resolve
any debate, either within or beyond the scientific community, over a
drug’s safety and efficacy. That decision is entitled to no less
respect today than it was 50 years ago.
So maybe Congress will re-examine the treatment of marijuana under
federal law and send the nation in a new direction. But maybe that new
direction will be to leave the decision how to treat marijuana in the
hands of the person we trust to make other, similar decisions: the
commissioner of food and drugs.
And maybe that approach will be a net social plus. We certainly think
so with respect to other drugs. Perhaps, it’s time to enlist the FDA
commissioner to make a scientific judgment about this issue, too.
Read this and other articles at The Daily Signal
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