Marijuana Law, Policy, and Authority

The Foreignness of Canadian Marijuana Legalization

Posted by on Friday, October 19, 2018 in News, Updates.

On October 17, Canada became the second country to legalize recreational marijuana (Uruguay did so in 2014). The Canadian Government has posted the full text of the nation’s recreational marijuana laws (including The Cannabis Act) here. It also has a useful summary of the laws here.

In many respects, Canada’s new law resembles the laws adopted by recreational marijuana states like California, Colorado, and Massachusetts. But Canada’s approach to legalization is unique in a few noteworthy respects. Because those differences could prove instructive to U.S. lawmakers, I’ll focus on them here. (In a similar vein, I’ve previously discussed some unique features of Canada’s medical marijuana laws in the book (see pages 226, 271, 506-507, 510-511).)

So here goes:

1. Canada’s minimum age for “recreational” (or adult) use is lower than the minimum age in the U.S.

The national Cannabis Act provides that individuals must be at least 18 years old to buy marijuana. To be sure, the Act empowers Canada’s ten provinces to raise the minimum age, and every province except Alberta and Quebec has done so – but only by raising their minimum ages to 19 years. These marijuana age limits are similar to the ones Canadian provinces have set for alcohol: Seven provinces have set the minimum age to buy alcohol at 19 years, while three of them (Alberta, Manitoba, and Quebec) have set the minimum age at 18 years.

By contrast, all ten of the states (I’m including D.C.) that have legalized recreational marijuana have set the minimum age for purchase (and possession) at 21 years. Not coincidentally, this is the same minimum age all fifty states (plus D.C.) have set for the purchase of alcohol.

Although American lawmakers might be interested to know how the lower Canadian age limits effect use by minors (those under 21 years), I seriously doubt any state will lower its minimum age for recreational marijuana. Politically, it would be difficult to do so, because (rightly or wrongly) the move would likely stoke fears about teen usage. I suspect the federal government would also make it costly for a state to lower its minimum age below 21 years. The federal DOJ could do so by threatening to prosecute any state-licensed distributor who sells marijuana to individuals under 21 years—indeed, federal law imposes especially harsh sanctions on anyone who distributes marijuana to or around minors (see book pages 375-377 for a discussion of aggravating circumstances). Or Congress could threaten to withhold a portion of federal grants to states that lower their minimum age for purchasing marijuana. Congress has already employed this tactic for alcohol. It makes a portion of federal highway grants contingent on states prohibiting the purchase or public possession of alcohol by anyone under 21 years. The threat of losing those funds is one big reason why all states have set the minimum age for purchasing alcohol at 21 years. And Congress seems committed to that number for marijuana as well; as noted in this post, for example, the States Act (one of the leading federal reform proposals) would continue to ban sales of recreational marijuana to anyone under 21 years, regardless of whether those sales are authorized by state law.

2. The Canadian federal government plays a much more constructive role in regulating marijuana than does the United States federal government.

Canadian legalization is also unique because many of the rules are being written by the national government, rather than by—or not just by—the provinces. The Canadian Parliament passed the Cannabis Act in June 2018. The Act legalizes the possession and personal cultivation of marijuana throughout Canada. It also regulates the commercial production of the drug, including the types of marijuana products that may be sold (e.g., no edibles for now) and the labeling and packaging of those products (e.g., nothing that appeals to kids). The Act allows provinces to set some limits on personal possession and cultivation (e.g, those age limits noted above). It also gives them power to regulate the retail distribution of marijuana (e.g., where stores may be located).

In the U.S., by contrast, there are essentially no federal rules governing how to test, package, label, manufacture, or distribute marijuana lawfully—federal law simply bans the production and distribution of marijuana. The lack of federal regulations means that individual states are writing all of the rules to govern the (legal) production and distribution of marijuana in their respective jurisdictions.

The Canadian approach could provide a useful blueprint for allocating responsibility for the regulation of marijuana in the United States. As I’ve complained before (see here and here), the leading federal marijuana reform proposals largely abdicate responsibility for regulating the drug. While those proposals repeal federal prohibition, they do not replace prohibition with civil regulations. Instead, the proposals leave it to the states to figure out how to regulate legal marijuana.

Although many people might prefer this hands off approach to the status quo (i.e., federal prohibition), they might prefer Canada’s allocation of responsibility even more. For example, many people might prefer to have the federal government regulate the labeling of marijuana products (as it now regulates the labeling of alcohol and pharmaceuticals), rather than to leave that issue to individual states. After all, every reform state has adopted its own, idiosyncratic set of labeling requirements, including requiring the use of different “universal” warning labels on marijuana products (see book pages 458-462); but it’s hard to see what purpose those differences serve, other than (perhaps) to protect local businesses from out-of-state competition.

3. Canadian governments will play an active role in the distribution of marijuana.

The Cannabis Act allows provinces to regulate the retail distribution of marijuana, and even to operate the stores themselves. Indeed, six Canadian provinces (British Columbia, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, and Quebec) and all three territories will sell marijuana through government-operated stores. The other three provinces will license privately owned companies to sell the drug. See here for the national government’s description of the approach taken by each province.

In the U.S., no state currently operates a marijuana store, although Utah has proposed a state-operated-distribution system (as I discuss here) and one municipality has created a public benefit corporation to operate a local marijuana store in Washington state. As I discuss in the post about Utah’s proposal, direct state distribution of marijuana is probably preempted by federal law. To be sure, for reasons I explain in that post, there may not be anyone who could actually challenge a state-operated store in court, even if such a store would be preempted. But concerns about preemption—not to mention all of the other hassles private licensees face because of the federal ban—have likely deterred states from playing a more direct role in the distribution of marijuana to date.

Canada’s experience with government run stores again could prove instructive. If those stores prove successful – not only as businesses, but as a means of combating some of the perceived dangers posed by a privately run marijuana industry – the government supply model might catch on here in the U.S. Recall that many states addressed concerns over the repeal of alcohol Prohibition by assuming direct control over the retail supply of alcoholic beverages.

That’s it for now. For some other interesting observations on developments up north, I recommend:

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