Lt. Governor Gavin Newsom’s Vague Response to UCSF Public Health Analysis of Marijuana Legalization Initiatives

The Sacramento Bee posted a video of its February 11, 2016 meeting with Lt. Governor Gavin Newsom on his support for the Adult Use of Marijuana Act marijuana legalization initiative.

In that interview Newsom dismissed the public health analysis of the two leading marijuana legalization initiatives I released  with Dr. Stanton Glantz the week before, on February 2, 2016. Here is a link to the UCSF press release that provides an excellent summary of the key points of the analysis.

Below I have responded to the Gavin Newsom interview in the following blog post.

In the interview Newsom states:

“Regulation is not a one day event on an election day in November. It is a dynamic process that unfolds over many years”

In response to that comment, the Bee’s Editorial board inquired:

“If you know that they [corporate players] are coming, why not put the kybosh on it now?”

Newsom’s response was vague.

“We can only do so much and what we want is flexibility.”

Newsom continued to denounce our work and challenged our credibility as public health authorities in tobacco control, arguing that our analysis contained several “profound mistakes.” Newsom recommended that the media and the public read the seven page response to the analysis that we were sent on the Saturday before the analysis was to be released to the public.

These criticisms were based on a draft copy of the report that I sent for feedback to authors of the Adult Use of Marijuana Act initiative on January 6, three weeks prior to publication of the final report.

Stanton Glantz and I spent the weekend reviewing the critique and, to be sure that we carefully addressed every detail, prepared a comprehensive response to the law firm of Olson, Hagel, and Fishburn, which represents the advocates for the Adult Use of Marijuana Act initiative.  As part of this effort, we asked several lawyers who are experts in tobacco and alcohol legalese to review our responses and ensure that we were not misunderstanding the initiative or its provisions. Ultimately, we changed a few words and minor technicalities in the final report, but the overall conclusions of the analysis remained the same.

Bottom line is that these initiatives prioritize creating a new market and new industry, that could easily and rapidly resemble the tobacco industry, over protecting public health.

In the interview Newsom stated that California does not want to be overly prescriptive to avoid the problems that Colorado, Washington, and Oregon (which has not implemented its regulations or opened its market yet) are facing without describing what those problems are or what the AUMA initiative would do to avoid these problems. After saying that, he went on to state:

“We have some very prescriptive provisions at least for the first five years. And the idea behind that is to get smaller players a head start so that they have the ability to develop their businesses…at least we would have five years. The critique I think that it should have been 20 years, which is equally arbitrary, 20, 5, 10 years and whatever. But we feel five years would give us time to develop even stronger parameters.”

Note the words “develop their businesses” while the words “protecting public health” are absent.

The five year provision that Newsom is referring to is one that would prevent the Department of Consumer Affairs from issuing large-scale cultivation licenses for the first five years of the legal marijuana market. In our analysis, we do not include a specific recommendation on how many years this provision should have been, but rather state that this provision will likely do little to prevent corporate capture of the market.

Rather, we stress the importance of creating simultaneously with legalization a comprehensive marijuana prevention and control program modeled on the California Tobacco Control Program as an important safeguard to protect the public from the predatory marketing and lobbying practices of the forthcoming marijuana industry.

Newsom also argued that the initiative contained very prescriptive provisions regarding marketing, packaging, and “youth” prevention and family education programs for which the authors of AUMA did not get credit.

We considered that these provisions were included in the initiative.

In fact, our analysis of these provisions was far more nuanced than Newsom credited. Using evidence-based research from tobacco and alcohol control, we concluded that these provisions will likely have little to no effect on preventing youth initiation, protecting the general public, and containing the lobbying and economic power of the emerging marijuana industry.

One of the most ironic comments Newsom made at the end of the interview was:

“[Marijuana] is a vice but it’s also medicinal, and that’s what distinguishes it from tobacco…That said this is a terrible drug for our kids.”

Why is protecting the general public not an important priority?

Legalization advocates, politicians, and California voters need to consider why Newsom and the authors of the AUMA initiative are so quick to legalize marijuana, given that in its current form this initiative fails to include several lessons from tobacco and alcohol control to proactively create a legal and social environment that would protect, rather than harm, public health. In particular, the initiative:

• Fails to include a marijuana prevention and control program modeled on the California Tobacco Control Program;
• Several marijuana industry representatives will sit on marijuana advisory boards and guide regulations and implementation of the new laws;
• Funding for marijuana research will end ten years after marijuana is legalized and marijuana-related disease research is not a priority; and
• Marketing and advertising restrictions are weak and based on ineffective alcohol regulations that have not prevented alcohol initiation in youth and overconsumption in the general population.

California voters should consider that there are likely underlying political and economic motives behind the move to quickly legalize marijuana in California in November 2016.

The more appropriate thing to do would be for the authors of the AUMA initiative, among others involved in legalizing retail marijuana, to withdraw and resubmit new initiatives that would truly prioritize public health over creating a new business. If this faction refuses to do this, then California voters should vote against any legalization initiative that does not contain the recommendations in our public health analysis (starting on page 38) as a clear message that California voters want marijuana legalization done right, through a pro-public health framework.

Public Health Analysis of Marijuana Legalization Initiatives

On February 2, 2016 I along with Stanton Glantz published a report entitled: “A Public Health Analysis of Two Proposed Marijuana Legalization Initiatives for the 2016 California Ballot: Creating the New Tobacco Industry.” In our analysis, we considered the public health impacts of two recent ballot proposals to legalize marijuana in the State of California, the Adult Use of Marijuana Act and the Marijuana Legalization Initiative Statute. This analysis evaluated whether or not these initiatives would create a new industry akin to the tobacco or alcohol industries. Rather than arguing for or against marijuana legalization, our analysis considered that if we accept marijuana legalization as forthcoming, how can we use the history and invaluable lessons from overcoming powerful industries, like the tobacco or alcohol industries, to proactively create a legal and social environment that would protect, rather than harm, public health?

Broadly the analysis was based on five overarching themes:

“Marijuana legalization through a pro-public health framework is an appropriate response to the social inequities and large public costs of a failed War on Drugs.

There is an opportunity to legalize marijuana in a way that would address and prevent the emerging and future public health problems associated with marijuana use (e.g., youth initiation, indoor use, social normalization, and health disparities) by implementing a strong public health-focused regulatory system.

Left unchecked, a wealthy and politically powerful marijuana industry, which is even larger than the existing medical marijuana industry, will rapidly appear and eventually resemble (and may become a subsidiary of) the tobacco industry.

Legalization will make it easier for this new industry to exercise political power to block effective regulation, and marijuana prevention and control.

The California Tobacco Control Program should be used as an operative model because it has effectively countered the tobacco industry and substantially reduced use and associated health costs of tobacco without making it illegal.”

Up until this analysis was published, the debate surrounding marijuana legalization was centered on two primary opposing views. On one side there were those that oppose legalizing marijuana because it would lead to commercialization of another substance that could adversely impact public health. Those that fall into this camp argue rather for decriminalization of marijuana possession laws and that the state should concentrate criminalization penalties on drug traffickers rather than individual users.

The other side argues that marijuana prohibition has been a huge public policy failure, and that marijuana legalization in a regulated commercial market will have a positive social and economic impact on the public. Those that fall into this broad category of legalizing marijuana and regulating it like alcohol, argue that marijuana legalization will address social justice and public safety issues, while at the same time create new opportunities for economic growth and increased revenue for the state general fund.

Neither of these two camps consider that regulating marijuana through a pro-public health framework, rather than a pro-business framework modeled on alcohol regulations, can address social justice issues while at the same time prevent the growth of another large industry. Without such controls, for example, a comprehensive marijuana prevention and control program and dedicated funds for continuous marijuana-related disease research, another industry will likely develop that would take advantage of the public through marketing and lobbying tactics aimed at undermining regulations designed to protect the public health.

Because the legal market is in its early stages of development, there may be an opportunity for other states to shape regulations that favor public health over profits. This analysis provides a pathway to achieve that goal.

That is if the public, including marijuana legalization advocates, government officials, and health advocacy organizations, choose to read and consider their recommendations which can be found on pages 38-43 of the analysis.

 

 

 

 

 

 

 

 

The Difference Between Advocacy and Proactively Shaping the Outcome of Policy…it’s HUGE

The legalization and commercialization of marijuana is increasingly becoming a significant topic of public discourse in the United States, Latin America, and Europe. Senator Bernie Sanders in his bid for the Democratic nomination for president pledges to remove marijuana from the list of Schedule I drugs. According to the 1970 Controlled Substances Act, marijuana is listed as a Schedule I drug with zero medical use and high potential for abuse. It has even become part of internal policy discussions within programs of the United Nations. In October 2015, a draft document from the United Nations Office on Drugs and Crime, the UNODC called for the decriminalization of drug use and possession of personal consumption. The document was leaked by none other than Richard Bronson, CEO of LinkedIn and one of five prominent business leaders that support legalizing marijuana in the United States.

There are several different motivations behind the move to legalize marijuana including combating drug trafficking particularly in Latin America, addressing the social injustice of the ‘war on drugs’, normalizing a substance that is perceived as less harmful than other legal drugs (i.e. tobacco and alcohol), and of course profit.

With several (Example 1, Example 2, Example 3, Example 4, Example 5, Example 6, Example 7) ballot initiatives already submitted to the California Attorney General’s Office, marijuana legalization is at the forefront of several internal debates among public health officials, school boards, the marijuana industry, venture capitalists, and policymakers, all of which have competing interests. This past week I attended and presented at the Tobacco Control, Research and Education Joining Forces to Address New Challenges Joint Conference (no pun intended) hosted by the California Tobacco Control Program, the Tobacco Related Disease Research Program, and the Tobacco Use Prevention Education Program. Every keynote speech, plenary talk, and breakout session, even my own entitled “Building it Better: Marijuana Policy and Lessons from Big Tobacco”, addressed in some way or another the issue of marijuana legalization and its impact on tobacco control. Other challenges included e-cigarettes and of course how menthol cigarette sales and predatory marketing tactics of the cigarette companies disproportionately impact the health of African Americans. I will address the implications of marijuana legalization on menthol sales and the cigarette companies in my next blog post…stay tuned.

California already has a well established marijuana industry that has been developing over the last forty years. The industry has largely worked underground and in the shadows due to the federal illegality of marijuana production, distribution, and sale. Without a statewide or national tracking system, it is difficult to know precisely how much marijuana is produced in California annually. Nevertheless, the High Intensity Drug Trafficking Area Central Valley program, a local agency that receives funding from the Federal Drug Enforcement Agency to address drug trafficking and production in critical regions, estimates that California may produce 75%-85% of the world’s marijuana, which is transported to states on the East Coast, Canada, and even Europe.

We may not be a tobacco growing state, but we are a marijuana producing state. Medical marijuana is now recognized as a legitimate business in California after the governor signed the medical marijuana package in September 2015, where the Board of Equalization will license, collect fees, and oversee tax administration of the medical side of production. In July 2015, BOE District 2 representative, Fiona Ma, called for a state chartered banking institution to deal with the issue that the industry conducts its business in large amounts of cash. Industry representative, Nate Bradley of the California Cannabis Industry Association, captures the implication of these new regulations and Ma’s banking proposal in the following:

“Gov. Brown and his colleagues in the Legislature have just given the green light to let California’s cannabis industry become the thriving, taxpaying, job-creating industry it was always destined to become”

We can and should expect the mom and pop, fragmented market to transform into a more professionalized and sophisticated operation, especially if marijuana is legalized for retail sales in 2016.

As I said in an earlier post, the public health community can shape how large the nascent marijuana industry becomes but needs to engage NOW rather than wait until this problem is too big to proactively address. We are always on the defense, let’s play some offense for once.

Also in an earlier post I discussed briefly my experience in policy discussions on regulating retail marijuana in California as:

“Those that are concerned are lumped into an unfair category of prohibitionist because we are aware that without appropriate controls, marijuana will likely become the next Big Tobacco.”

Ironically, when this issue was brought to the public health community to request their involvement in shaping marijuana regulations for California, there was an underlying sentiment that their involvement would mean more than shaping policy, it would mean that they were actually supporting legalization.

This sentiment is false. The differences between advocacy and proactively shaping policy are quite different. For example:

Differences between Pro-Legalization and Proactively Shaping Policy
	Advocating for Legal Market	Proactively Shaping Policy
Local Control	State preemption to create a standardized regulatory system	Local government may impose stricter regulations on sales, smokefree, taxation, and marketing
Minor sales	Sales to 18 and older	Sales to 21 and older
Licensing Requirements	No licensing fees or enforcement mechanisms	Local and state retail licenses with annual fees
Smokefree Laws	Exemptions for restaurants, bars, clubs to prevent youth exposure at home	No public usage to protect bystanders and to prevent normalization of behavior
Marketing/ Advertising	Prohibited in venues where 30% of readership is under 21, protects commercial speech rights	No advertising or marketing
Taxation	Low taxes to prevent black market sales	High enough to deter initiation and problematic use
Dedicated Funds	Taxes dedicated to school programs, budget deficit, and general fund	Taxes earmarked for health education and prevention, and media campaigns
Health Education & Prevention	School-based intervention programs Cessation programs not necessary	Aimed at general public, culturally tailored messaging, free cessation services
Media Campaign	Informs public on responsible adult use and on preventing youth initiation	Year round media campaigns aimed at the general public on health risks and industry manipulation, promotes cessation
Industry Involvement	Appointed members from industry to sit on oversight committees or working groups	Industry may not sit on any regulatory or advisory committee. Any industry interaction with government officials or public health must be made publicly available.

The key difference between advocating for and proactively shaping legislation is that the latter does not have a stake in whether the law passes or not. The latter is a pragmatic strategy taking into account that if marijuana is legalized and the public health community is not at the table, the resulting regulations will favor the interests of the industry. And we know that the industry does not care about the public’s health, they do care however, about profit. Profit means:

Recruiting new and young smokers through widespread marketing including use of cartoon characters…

candy flavors…

school-based interventions that don’t work…

Youth smoking increased after one year (1999-2000) implementation of Life Skills according to Philip Morris

exemptions in smokefree laws, placing tax revenues in the general fund, and prohibiting sales to minors but not requiring enforcement or licensing of retailers and…

denying the science on health risks associated with use and secondhand exposure…

As we did with e-cigarettes at the local level, we can take a proactive approach in shaping marijuana regulations. We should not be debating whether marijuana legalization is inevitable or not, instead we should be using our hard won lessons learned from regulating tobacco in California and apply these lessons to marijuana policy. Even some that may seem impossible for tobacco, like age 21 sales or prohibit marketing, we can have at the beginning of a legalized market. We should be expecting marijuana legalization to pass in 2016 in California, and even if it doesn’t, at least we can say we were at the table proactively shaping policy rather than sitting on the sidelines.

The Pro-E-Cigarette Advocacy Network

In May 2015, University of Illinois at Chicago MidAmerica Center for Public Health Practice, an institution dedicated to healthy living through social environment change, held its annual conference, Change Institute, in Chicago, IL. The Insitute´s general focus is on three key areas of public health: reduce tobacco use, increase physical activity, and healthy eating. This year´s theme was on how to create and adopt innovative approaches to control tobacco. I along with Dr. Randy Uang from the University of California, San Francisco presented on emerging products related to tobacco that may undermine achievements made by the tobacco control movement over the last 40 years in a presentation entitled: “Defending Public Health from Tobacco: Health Far We’ve Come and Where we Can Go.”  These new products include e-cigarettes, hookah, and marijuana, all of which facilitate poly-product use among youth and young adults. For example, marijuana users may use e-cigarettes to vape hash oil or marijuana users may smoke a mentholated cigarette following marijuana use to sustain the high, a phenomenon known as “blunt chasing”. The cigarette companies have known about “blunt chasing” since the 1980s.

This presentation began with a discussion on how far states, in particular Illinois, have come in terms of controlling tobacco and the power of the tobacco industry. It ended with a discussion on products, e-cigarettes for example, that may make or break tobacco control. Without strong regulations on e-cigarettes at the state or local level in the United States, the rate of use among youth has escalated between 2011 and 2014. Adding to the chaos is that the cigarette companies entered the market in 2013 and have been influencing e-cigarette policy debates ever since, using their historic tactics and immense resources to pass pro-industry legislation and prevent strong state laws regulating their sale and use.

Electronic cigarettes (e-cigarettes), also known as electronic nicotine delivery systems (ENDS), are battery operated devices that deliver an aerosol of nicotine (in most cases), flavors, and other chemicals to the user. E-cigarettes exist in a wide variety of forms including “cigalikes”, which resemble conventional cigarettes, and “open system” devices (including “vape pens” and “tanks”) with a greater heating capacity that can be refilled with a liquid solution of nicotine, marijuana hash oil, or other drugs. Most brands offer a wide variety of flavors, including conventional cigarette flavors (tobacco and menthol) and candy flavors (gummy bears, bubble gum, cotton candy) that appeal to youth.

Between 2010 and 2014, e-cigarette use among middle and high school students exponentially grew. According to data from the Centers for Disease Control and Prevention, e-cigarette use among youth tripled between 2013 and 2014 and nicotine is now the leading form of recreational drug use among teenagers. Why the rapid increase in such a short period of time? Well, e-cigarettes are largely unregulated in terms of marketing and advertising, minimum purchase age, retail licensing, public use, and taxation. The major e-cigarette and cigarette companies that own e-cigarette brands took advantage of the lack in regulation and launched mass marketing campaigns on television, print, and the Internet and increased e-cigarette availability by moving their sale beyond specialty “vape shops.”

The federal Food and Drug Administration has not exerted its authority to regulate e-cigarettes as tobacco products, and so these products do not face the same advertising and marketing restrictions that other tobacco products are subject to. In 1971, President Nixon signed into law the Public Health Cigarette Smoking Act, which bans all tobacco advertising on radio and television. In 1998, the Master Settlement Agreement addressed public concern that cigarette company targeting of youth was increasing youth smoking, by prohibiting sports and event sponsorship, billboards, giveaways, and cartoon characters. However, cigarette companies are masters of reinvention and so used their close relationships with tobacco retailers and focused their marketing expenditures at the retail sales environment to circumvent laws that prohibit or significantly restrict their promotional activities.

Without FDA regulation, the cigarette companies are re-using historic advertising and marketing tactics to sell nicotine products in the 21st century. (Note: e-cigarette companies are also using these tactics). Stanford has a collection of e-cigarette and cigarette advertisements on its “Research into the Impact of Tobacco Advertising project” website. Here are two from Blu (owned by Lorillard) and Fin (an independent company).

Fairly similar arguments and messaging…Freedom

By October 2015, only eight states had included e-cigarettes in their smokefree laws (Connecticut, Maine, North Dakota, New Jersey, Utah in effect and Delaware, Hawaii, and Oregon enacted but not yet in effect). As indicated earlier, the federal government had not defined e-cigarettes as tobacco products or regulated marketing and product standards.

Why are e-cigarettes escaping federal and state regulation? Well, since 2009, legislation has been opposed by an evolving pro-e-cigarette advocacy network of groups whose members’ interests differ but who have common goals of minimizing e-cigarette regulation and preserving consumer access. The initial pro-e-cigarette advocacy network began as several loose-knit bottom-up efforts led by users and retailers but rapidly evolved into a top-down anti-policy campaign after cigarette companies entered into policy debates.

The cigarette companies have a shared interest in opposing restrictions on e-cigarettes but also promote policies that will protect both their cigarette and e-cigarette markets by eliminating competition from small and medium sized independent companies. For instance, cigarette companies, through industry-funded think tanks pushed for regulations on e-cigarettes that would exempt bars and nightclubs from smokefree legislation, a common cigarette company strategy dating back to the 1990s. Industry-funded think tanks involved in the pro-e-cigarette advocacy network, like American Council on Science and Health (ACSH), Heartland Institute, National Center for Public Policy Research (NCPPR), American Enterprise Institute (AEI), American Legislative Council (ALEC), and State Policy Network (SPN), all have received money from the cigarette companies since at least the 1990s and were still receiving funding during e-cigarette policy debates (2010-2014).

Cigarette and E-Cigarette Company Funding to Think Tanks (2010-2014)
	ACSH	Heartland	NCPPR	AEI	ALEC	SPN
Cigarette	$355,000	$360,000	Undisclosed amount1	Undisclosed amount	$536,000	$105,000
E-Cigarette	$41,000	N/A2	N/A	N/A	N/A	N/A
1Think tank stated received cigarette company funding but did not publicly disclose amount 2No publicly available data for 2012 or 2013 for actual amount

Cigarette companies also pushed for product restrictions that would eliminate competition from small companies and vape shop retailers. For example, in 2013, RJ Reynolds was pushing product regulations for the proposed FDA deeming rule to ban the production and sale of open system e-cigarette products, which were predominately sold by small e-cigarette companies and e-cigarette retail stores. E-cigarette users and vape shops retailers, through online social forums, protested RJ Reynolds’ move to push out small retailers but did not file public comment to protest RJ Reynolds’ recommendations to the FDA.

PM was pushing for health warning labels on its e-cigarette products that ironically (or not) were stricter and larger than what was required for conventional cigarettes.

E-cigarettes remain a serious public health issue for local and state governments. Because the FDA is moving at a glacial pace and state governments are more likely to listen to the concerns of their corporate donors rather than their constituents, it is important that local governments continue to pass legislation that restricts e-cigarette sales and indoor use. State health departments, in the absence of strong laws controlling e-cigarette sale, use, and taxation, should run mass media campaigns aimed at the general public on the harms of e-cigarette use, dual use, and cigarette company involvement in the e-cigarette market and associated policy debates.

Public Health Interest at Heart: Uruguay vs. United States’ Marijuana Regulatory Frameworks

If we could start over with tobacco, knowing all the information we do on the health risks and the industry’s ability to manipulate legal frameworks and consumer consent, what would we do differently from the onset? Aside from the obvious total prohibition on cultivation, production, and sale of tobacco, a model similar to government-run alcohol stores following prohibition would address the issues we currently face in controlling a powerful industry selling a product that has negative public health consequences. Indeed the privatization of alcohol production, distribution, and sales has resulted in significant societal costs, including 30,000 annual alcohol induced deaths excluding accidents and homicide. Domestic violence is not included in the CDC’s annual toll.

Last week two media stories were circulated that discussed the future of marijuana sales in Uruguay and the United States, specifically California. One discussed Uruguay’s government granting two licenses to domestic companies to grow retail marijuana for the state.

The second highlighted that marijuana was now a mainstream issue given five prominent business leaders, the Georges: Soros (Soros Fund Management) and Zimmer (Men’s Warehouse), Richard Branson (LinkedIn), John Mackey (Whole Foods),  and Peter Thiel (PayPal) publicly support legalization.

There are stark differences in how the Uruguayan and US marijuana markets are unfolding and it could largely be due to who is framing the public debate on the issue. Generally, Latin America has been critical of the US globalizing its punitive ‘war on drugs’ and instead favors policies that would treat drug use as a public health issue. Criminalization tends to favor drug cartels and paramilitary groups. Since President Mejica was behind legalizing marijuana in Uruguay with the public health interest at heart, Uruguay’s government is implementing policies that likely will foster growth of an industry that it can control and that prevents large multinational corporations from entering. One CEO from a marijuana distribution company in Holland remarked:

[The] selection of small, local companies indicated to the international cannabis industry that Uruguay is primarily interested in fostering a domestic pot-growing market, rather than providing a base for companies to grow fields of weed for export.

In contrast the five business leaders seem to have different plans for the growth of the US marijuana market, which appear to be supportive of allowing free reign to a burgeoning industry. Framing their arguments on the social injustice of the ‘war on drugs’ while in the same sentence claiming that the legal market will generate billions of dollars in annual revenue, it is clear that their underlying motive is to promote consumption to increase profits. Such a framework will make stockholders happy but what about the public health interest?

Well, the public health interest has largely been absent from the marijuana legalization debate. Those that are concerned are lumped into an unfair category of prohibitionist because we are aware that without appropriate controls, marijuana will likely become the next Big Tobacco. Due to federal illegality, major health organizations like the American Lung Association, American Heart Association, and American Cancer Society do not want to engage publicly or take a stance on legalization or what regulation should look like.

This has led to a political environment in which the corporate class and not the public health community is shaping the debate on legalization. This is problematic because these five influential business figures, alone, have the financial power and connections to hire the best advertising firms in the nation to sell legalization to their target audience, the voter. The corporate class and venture capitalists do not have the public health interest at heart. Once legalized in California and then at the federal level, it is likely that private companies will do anything to ensure that marijuana comes in a wide array of products, flavors, forms and is widely marketed on television, radio, and social media. We are seeing the same thing happening with e-cigarettes, which as of October 2015, still have not been regulating by the FDA. Warning to all those that are inhaling products that have not undergone rigorous scientific testing for product safety by the federal agency in charge of doing so for other commercial products.

Once we go private there is no return to the ideal regulatory framework: government-run production, distribution, and sale. Marijuana corporations will have legal protections that other industries currently enjoy including commercial speech rights, which would allow them to widely market and advertise their products.

It is extremely important that the public health community engage in the marijuana legalization debate to ensure that we maintain the public health interest at the center of any regulatory framework. We have the opportunity to shape what “marijuana normalization” looks like for the population and we can shape how this industry evolves. For once, we do not have to clean up a mess that was started over 100 years ago.

Advocating for Corporate Interests: ACLU and the Tobacco Industry

In June 2015, the Washington State Legislature passed House Bill 2136, which among other policies related to the taxation, licensing, and sale of marijuana, prohibited all marijuana clubs in the state, see Section 1401, p. 53. The purpose of Section 1401 was to prevent on-site marijuana consumption in private establishments (i.e. marijuana clubs, lounges) even if marijuana consumers paid a fee to become a member.

The 2012 marijuana initiative in Washington contained vague language regarding public consumption of marijuana: “It is unlawful… [to] consume marijuana… in view of the general public.” As a result, Washington State regulators have interpreted the language to mean that marijuana consumption is illegal in all public places, including marijuana retail stores, restaurants, bars, lounges, nightclubs, hotels/motels, sports stadiums, concert venues, and of course on all Federal land due to federal prohibition.

Representatives of the American Civil Liberties Union in Washington State, among others involved in the move to legalize recreational marijuana across the United States  (MJ legalization advocate in California, David Ball, and Drug Policy Alliance’s Amanda Reinman) have taken a strong position in favor of exempting marijuana clubs from public usage laws. The rationale for such position is that these clubs will support socially appropriate marijuana use (similar to how bars support socially appropriate drinking?) The following statement is from a representative of ACLU and one of the authors of the 2012 initiative:

“As for smoking laws, (1) the second-hand smoke health risks are not comparable to tobacco; (2) marijuana clubs could be required to allow only vaporization and prohibit combustion; (3) marijuana clubs could be restricted to adults 21 and over and required to bar visual access to consumption by passersby to minimize visual exposure to youth; and (4) marijuana clubs could be required to have filtered ventilation installed and ingress and egress design that minimizes annoying odors escaping to the passing public.”

The most problematic statement is “second-hand smoke health risks [of marijuana] are not comparable to tobacco [smoke].” Marijuana smoke is not harmless. Research conducted at the University of California San Francisco by Dr. Matthew Springer provides evidence to support including marijuana in existing smokefree laws. Marijuana concentrations are comparable to tobacco smoke concentrations and will likely pose similar health risks.

Note: The other statements are problematic as well. Statement 2 is a position advocated by cigarette and e-cigarette companies across the United States to avoid regulation (See Lempert, 2014). Statement 3, exemptions for adult-only venues (see Dearlove, 2002 and Sebrie, 2007) and statement 4, ventilation as an alternative to smokefree policies (see Bialous, 2002 and  Drope, 2004) are positions advocated by the tobacco companies to circumvent and/or weaken strong smokefree legislation.

This is not the first time that the ACLU has supported policies that would benefit private corporate interests. For years, the ACLU was a crucial ally for the cigarette companies, defending the industry’s marketing tactics and claims that that there was no evidence to support that secondhand tobacco smoke is dangerous. In exchange for over a million dollars from RJR and Philip Morris, the organization fought against smoking restrictions in public places, workplaces, and restaurants, asserting that smokers had a civil right to smoke anywhere. The ACLU even downplayed the health risks of secondhand tobacco smoke stating “many of the claims made about the health effects of smoking are exaggerated.” (Source: Cigarette Confidential, p.158)

As more states legalize marijuana, policymakers should follow the lead of Washington State and prohibit marijuana clubs, in addition to prohibiting marijuana consumption in public places, workplaces, restaurants, bars, and casinos. Allowing marijuana products to be used in marijuana clubs (either combustible or via e-cigarettes) not only reinforces the social acceptability of marijuana use, but also is an issue of workplace safety for employees who would be exposed to secondhand marijuana smoke at concentrated levels. It is important for policymakers to pass strong legislation on marijuana public usage the first time because once a bad law is passed it is unlikely that policymakers will amend the law to include additional venues (see Sanders-Jackson, 2013).

ACLU’s blatant and unsubstantiated statement could form the basis of misguided policy. It is important that policymakers understand the financial and political relationship between the ACLU and the cigarette companies when considering policy options advocated by the ACLU for retail marijuana.

Tobacco Education Research Oversight Committee Weighs in on Marijuana Regulation in California

On September 29, 2015, the Tobacco Education Research Oversight Committee (TEROC) had its monthly meeting to discuss issues facing California in terms of tobacco control and public health. TEROC is a legislatively mandated oversight committee (California Health and Safety Code Sections 104365-104370) that monitors the use of Proposition (Prop) 99 tobacco tax revenues for tobacco control, prevention education, and tobacco-related research in California. An issue that recently has been on the minds of tobacco control researchers, including members of TEROC, is the proposed marijuana legalization initiative that will be placed on the 2016 California ballot and which according to the Public Policy Institute of California has a good chance of passing. In June 2015, 54% of California voters approved of legalizing retail marijuana sales.

In March 2014,  Lt. Governor Gavin Newson created the Blue Ribbon Commission on Marijuana Policy. The Tax and Regulatory Structure Group contained experts in tax law economists, and drug policy reformists. There were few representatives from the public health community, in particular representatives that had the unique understanding of how legalization may impact public health in general and tobacco control in particular.  Given that the tobacco companies have since at least 1970 been interested in marijuana as a potential, rival, and complementary product it is imperative that policymakers and public health authorities develop and implement regulations using lessons learned in tobacco control.

In April 2015, Lt. Governor Newsom held a public forum in Fresno to discuss marijuana taxation and regulation. In response, public health experts from the University of California, San Francisco sent a letter to TEROC requesting that TEROC submit recommendations to the Blue Ribbon Commission on marijuana policy.

At their June 3, 2015 monthly meeting TEROC concluded that it “should be proactive instead of reactive to marijuana policy because it is likely the initiative to legalize it [marijuana] for recreational use will be introduced in 2016, and will likely pass.”

TEROC wrote a thoughtful 9 page recommendation in response to my letter, which included the following:

1) Include marijuana in existing smokefree laws for cigarettes and e-cigarettes;

2) Institute a comprehensive health education program similar to the mandate of California Tobacco Control Program; and

3) Apply tobacco-related types of policies to marijuana on sales, taxation, and marketing.

Here is an overview of the recommendations made by TEROC and compared them to what the BRC recommended in its June 2015 report.

TEROC is a legislatively mandated body with very specific guidelines that legally it must follow: conduct tobacco control research and provide recommendations to the tobacco control program. Marijuana control does not fall under the scope of TEROC’s mandate, and so, it had been very difficult to get the tobacco control community in California to be able to legally engage in the marijuana policy debate. The UCSF letter to TEROC stressed the importance of TEROC weighing in on marijuana regulation because legalization may impact tobacco control efforts developed over the last 25 years in California. The 2015-17 Master Plan of the Tobacco Education Research Oversight Committee specifically states among its research priorities to study “the relationships between the onset of tobacco use and initiation of other risky behaviors, including alcohol and marijuana” in order to guide state and local tobacco control efforts.

Given the rising prevalence in poly product use (i.e. tobacco, marijuana, alcohol, e-cigarettes, and other substances), it was completely appropriate for TEROC and others in the tobacco control community to engage in the marijuana legalization debate and regulatory process. Now that TEROC and the Tobacco Related Disease Research Program (TRDRP), which also receives funds from the tobacco tax, are safe to participate in guiding marijuana regulation and marijuana-related research (as it relates to tobacco control), I envision California will once again be making history by creating a regulatory environment for retail marijuana where the public health interest is at the center of the debate.