CANNABIS LEGALIZATION IN STATE LEGISLATURES: PUBLIC HEALTH OPPORTUNITY AND RISK

Abstract

Cannabis is widely used in the U.S. and internationally despite its illicit status, but that illicit status is changing. In the U.S., 33 states and the District of Columbia have legalized medical cannabis, and 11 states and D.C. have legalized adult use cannabis. A majority of state medical cannabis laws and all but two state adult use laws are the result of citizen ballot initiatives, but state legislatures are beginning to seriously consider adult use legislation. From a public health perspective, cannabis legalization presents a mix of potential risks and benefits, but a legislative approach offers an opportunity to improve on existing legalization models passed using the initiative process that strongly favor business interests over public health. To assess whether state legislatures are acting on this opportunity, this article examines provisions of proposed adult use cannabis legalization bills active in state legislatures as of February 2019 to evaluate the inclusion of key public health best practices based on successful tobacco and alcohol control public health policy frameworks. Given public support for legalization, further adoption of state adult use cannabis laws is likely, but legalization should not be viewed as a binary choice between total prohibition and laissez faire commercialization. The extent to which adult use cannabis laws incorporate or reject public health best practices will strongly affect their impact, and health advocates should work to influence the construction of such laws to prioritize public health and learn from past successes and failures in regulating other substances.

Introduction

Cannabis¹ is the most widely used psychoactive substance in the world that is under international control, with an estimated 181.8 million global users annually as of 2013.² In the U.S., cannabis is by far the most commonly used illicit substance, with an estimated 24.0 million people age 12 or older reporting use in the past 30 days (8.9% of that population) as of 2016.³ Use is highest among those 18–25 years old (20.8%).⁴ While overall prevalence is far outpaced by licit substances tobacco (63.4 million users age 12 or older; 23.5% of population) and alcohol (136.7 million users age 12 or older; 50.7% of population),⁵ cannabis use is remarkably⁶ and consistently⁷ high given the drug’s illicit status.⁸

The illicit status of cannabis, however, is in a state of flux. Despite continued illegality under federal law,⁹ between 1996 and June 2019, 33 U.S. states, the District of Columbia, and the territories of Guam, Puerto Rico, and the Virgin Islands legalized use of cannabis for medical purposes, and 11 states, D.C., Guam, and the Northern Mariana Islands legalized recreational or “adult use” of the drug.¹⁰ In these jurisdictions, a lucrative new business sector is rising, complete with professional marketing firms,¹¹ industry-specific conferences and events,¹² and industry groups actively lobbying for favorable legal changes.¹³

Estimates for the near-term future size of the global legal cannabis market vary and depend heavily on assumptions of future legal changes, but some analysts expect the industry could grow to $75 billion in sales by 2030, surpassing soda, among other industries.¹⁴ The cannabis market has already attracted the attention and investment of major corporate entities in Canada (which legalized adult use in 2018), including Altria (parent company of Philip Morris USA, maker of Marlboro® and other cigarette labels), Constellation Brands (owner of Corona® and other beer labels), and Molson Coors (owner of Molson®, Coors®, and other beer labels), while a number of other large corporations, including Coca-Cola®, are reportedly also considering entry.¹⁵

Tobacco companies in particular have contemplated entering the cannabis market in the event of legalization since the late 1960s.¹⁶ Public health advocates are justifiably concerned about such corporate entities, especially tobacco, entering the cannabis market, but even an independently developing cannabis industry poses substantial risks if it follows the path of industries like tobacco. As Richter and Levy explain:

The tobacco industry has provided a detailed road map for marijuana: deny addiction potential, downplay known adverse health effects, create as large a market as possible as quickly as possible, and protect that market through lobbying, campaign contributions, and other advocacy efforts.¹⁷

Cannabis legalization carries ostensible social benefits, including medical utility for some conditions¹⁸ and the promise of ending discriminatory enforcement practices that have disproportionately affected vulnerable populations, particularly communities of color, throughout the history of cannabis criminalization in the U.S.¹⁹ American voters have been receptive to these arguments and have been increasingly willing to approve medical and adult use legalization ballot initiatives over the past two decades.²⁰ Particularly for adult use cannabis, ballot initiatives have been advocates’ legal vehicle of choice. Only Illinois (2019), Vermont (2018), the Northern Mariana Islands (2018), and Guam (2019), have enacted adult use laws legislatively; the other 9 states and D.C. have all enacted their adult use laws via ballot initiative.²¹

The increasing success of legalization ballot initiatives over time²² and the current state of U.S. public opinion on the appropriate legal status of cannabis (62% support nationally for legalization as of 2018²³) make further legalization highly likely in additional states. From a legal and public health perspective, cannabis legalization has likely become more a question of “how,” rather than “if” in the U.S.²⁴ As additional states²⁵ contemplate adult use legalization, the public health implications of this policy evolution will depend in part on the content of legalization laws and how well they govern the new legal market.

On one side, legalization represents the potential to better regulate a substance that has remained commonly used despite strict federal prohibition and to improve public awareness of the health effects (both adverse and therapeutic) of use. On the other, legalization may also increase use prevalence and frequency, encourage youth initiation, reproduce existing inequities for vulnerable populations, and lead to other social harms. The influence of corporatization may exacerbate such negative effects, replicating the ills of tobacco and alcohol markets. Legislative approaches to cannabis legalization thus present both opportunities and risks for public health.

Public health best practice frameworks provide critical guidance on how to regulate cannabis effectively and minimize negative health impacts. A public health approach to legalization prioritizes public health over other goals, including industry profits, state tax revenues, and business development, that, while valid bases for government action generally, may lead to detrimental outcomes in regulating potentially harmful substances. A public health approach draws on the successes and failures of domestic and international regulatory frameworks for other substances, most notably tobacco and alcohol. However, these substantive concerns do not exist within a vacuum, but rather intersect with the procedural question of how a state legalizes adult use cannabis – i.e., ballot initiative or legislation. To further understand this intersection, this article assesses the adoption or absence of public health best practices in proposed legislative adult use cannabis laws.

Part I provides background information on the history and current status of cannabis under U.S. federal and state law. This section also introduces the foundations of a public health approach to cannabis legalization based on best practices from tobacco and alcohol control. Part II defines a rubric for evaluating proposed legislative legalization and applies this rubric to proposed bills from 2018–2019, finding that elements of a public health approach have gained traction in at least some proposals. Part III discusses the implications of these findings, concluding that proactive adoption of adult use cannabis legalization via state legislatures could benefit public health by obviating pro-industry, advocate-driven initiatives and preserving legislative and regulatory flexibility to address developing evidence and implementation challenges in the future.

I. Background

A. Brief History of Cannabis Legalization in the U.S.

1. The Path to Prohibition and Back Again

Cannabis cultivation has a long and complex history in human civilization.²⁶ Cannabis was one of the earliest cultivated plants, and its potential medicinal properties have been documented in Western medicine since the 19^th century (and likely much longer in other traditions).²⁷ Cannabis appeared in the Pharmacopeia of the United States from 1851 until 1942 with reference to use as an analgesic, hypnotic, and anticonvulsant.²⁸ Despite this, most states banned cannabis in the early 20^th century, and the federal government followed suit in 1937.²⁹ Much of this push toward criminalization in the early 1900s was rooted in racial animus toward Mexican immigrants and African-Americans.³⁰ Various international drug control treaties also developed in the early- and mid-20th century, ultimately consolidated in the 1961 Single Convention on Narcotic Drugs.³¹ The Single Convention and subsequent amendments created a scheduling system for controlled substances and obligated treaty parties to criminalize possession of such drugs.³² The U.S. played a pivotal role in shaping the treaty, led by Harry J. Anslinger, the nation’s first commissioner of the Federal Bureau of Narcotics (the precursor to the Drug Enforcement Administration (DEA)) who had spearheaded cannabis criminalization in the U.S.³³

Under the Controlled Substances Act (CSA) of 1970,³⁴ cannabis became one of the most highly restricted drugs under U.S. law.³⁵ The CSA placed cannabis (“marihuana” in the statutory language) on Schedule I, meaning it was found to have: 1) high potential for abuse, 2) no currently accepted medical use in treatment in the U.S., and 3) a lack of accepted safety for use under medical supervision.³⁶ Other Schedule I drugs include a variety of powerful opiates and opium derivatives (e.g., heroin), hallucinogens (e.g., LSD), and, as of 2012, several newer synthetic street drugs, including synthetic cannabinoids (sometimes called “K2” or “spice”).³⁷ Either Congress or the U.S. Attorney General (via the DEA and with recommendation from the Secretary of Health and Human Services) has authority to revise this approach; however, petitions for rescheduling cannabis have failed as recently as 2016,³⁸ despite growing evidence that cannabis has some therapeutic utility.³⁹ Congress did legalize hemp production under the 2018 Farm Bill;⁴⁰ however, hemp includes only cannabis with minimal concentration of ∆⁹-tetrahydrocannabinol (THC, responsible for the “high” associated with cannabis intoxication, among other effects).

Despite the Schedule I status of cannabis, the FDA has licensed three medications based on cannabinoid compounds responsible for the drug’s effects. Among over one hundred identified cannabinoids, two receive by far the most attention from both the medical community and from regulators: THC and cannabidiol (CBD).⁴¹ The first two FDA-approved cannabinoid medications used synthetic THC: dronabinol (trade name Marinol®) and nabilone (trade name Cesamet®), both used for chemotherapy-associated nausea and vomiting. In 2013 FDA granted investigational new drug status to the first medication using non-synthetic cannabinoids derived from the cannabis plant, a concentrated CBD oil under the trade name Epidiolex® for the treatment of epilepsy-related seizures.⁴² Because Epidiolex® is derived from cannabis itself, some observers see its approval as potentially triggering reclassification of cannabis under federal law based on FDA’s formal recognition of medical utility, one of the core elements of drug scheduling under the CSA.⁴³

Shortly after enactment of the CSA, several states reduced their own criminal penalties for cannabis possession, with 11 states enacting such laws in the 1970s, though this policy development then stalled until the mid-1990s.⁴⁴ In 1996 California became the first state to legalize cannabis for medical use under state law, and 7 other states and D.C. followed suit by 2000.⁴⁵ The next two decades saw even more sweeping changes. By the end of 2018, 20 states and D.C. had decriminalized possession of small amounts of cannabis, 15 states had legalized limited forms of medical cannabis (e.g., high-CBD, low-THC products), 33 states and D.C. had fully legalized medical cannabis, and 10 states and D.C. had legalized adult use cannabis.⁴⁶ As of July 2019 there were only 4 states (Idaho, Kansas, Nebraska, and South Dakota) with total prohibitions on cannabis under state law.⁴⁷

2. Initiatives and Industry

Most state medical and recreational cannabis laws originated as ballot initiatives, rather than legislation. Of the 11 state recreational laws, all but Vermont’s and Illinois’s were initiatives, as were 18 of the 33 state medical laws.⁴⁸ The ballot initiative process arose from late 19^th-century Populist and early 20^th-century Progressive movements to circumvent the perceived dominance of special interests in state legislatures.⁴⁹ Tobacco control efforts in the U.S. are a modern example of the overall anti-special interest character of initiatives. Beginning in the 1970s, tobacco control advocates began using state ballot initiatives and local-level equivalents to adopt smoking restrictions and tobacco taxes, sidestepping the tobacco industry’s considerable legislative influence.⁵⁰ In response, the tobacco industry (in partnership with other “ballot-prone” industries) monitored initiative activity and advocated for reforms that would make the process more challenging, such as increasing signature requirements, reducing signature gathering periods, and increasing vote requirements for tax increases.⁵¹

Some critics of direct democracy (including ballot initiatives and referendums), argue that the susceptibility of electorates to campaign advertising allows wealthy interests to dominate the process, enabling exactly the type of special interest advantage the process was designed to counter.⁵² The tobacco industry, for example, has adopted a tactic of attempting to defeat tobacco control initiatives by introducing competing “look-alike” initiatives on the same subject that contain fewer or weaker regulations and often incorporate preemption of stronger local laws.⁵³ Overall, however, an empirical analysis of initiatives relating to three major industries (energy, finance, and tobacco) found that enacted initiatives much more often resulted in laws contrary to industry interests than beneficial to them.⁵⁴

Critics of cannabis legalization have also raised the claim that the initiative process allows outsized influence of moneyed legalization advocates, often based outside of the state in which the initiative is proposed, who are able to commit levels of funding that are difficult for opponents to counter.⁵⁵ However, analysis of funding for legalization ballot initiatives from 2004–2016 found that industry funding involvement was low in most states (with some exceptions).⁵⁶ While the money raised by advocates is substantial and typically considerably higher than that raised by opponents,⁵⁷ changing public opinion over time may better explain the increasing success of initiatives, though the two are likely related.⁵⁸ At the same time, there has been an increase in cannabis industry contributions to initiatives, particularly in the 2015–2016 election cycles, which could indicate an emerging trend toward increased industry involvement in the process.⁵⁹ Overall, the current relationship between the cannabis industry and the ballot box appears to differ from that of other industries, insomuch as the cannabis industry is primarily a beneficiary rather than a target of initiatives and has in many cases played only an indirect role in the process.

3. Existing State Frameworks

As of July 2019, successful recreational cannabis initiatives had developed exclusively in the context of existing medical legalization frameworks. All eleven recreational cannabis states had previously adopted medical laws, most by ballot initiative.⁶⁰ Kilmer and MacCoun argue that medical legalization eases later passage of recreational laws by: 1) demonstrating the efficacy of voter initiatives in this policy area; 2) enabling changes in public perception that destabilize the War on Drugs; 3) increasing the evidence base to counter concerns regarding the effects of legalization; 4) creating “a visible and active marijuana industry”; and 5) showing that the federal government will not prevent state and local jurisdictions from collecting cannabis tax revenues.⁶¹ Legalization opponents agree that medical cannabis laws facilitate later recreational laws, sometimes claiming that medical laws are mere pretext for recreational use or legalization.⁶²

In 2012, Colorado and Washington became the first states to legalize adult use cannabis, followed by Alaska and Oregon in 2014, California, Maine, Massachusetts, and Maine in 2016, Michigan and Vermont in 2018,⁶³ and Illinois in 2019.

Vermont’s law is unique among this group in two respects. First, it was the first to pass legalization legislatively. Second, while Vermont’s law made cannabis possession legal as of its effective date (July 1, 2018), it left legalization and oversight of legal sales for a later date. As of July 2019, the legislature had not passed a sales measure, and multiple Vermont bills are included in this analysis. Vermont’s current law is more an extension of decriminalization (eliminating not only criminal, but also civil penalties), rather than full legalization as more commonly understood.⁶⁴

Implementation delays and political conflicts between industry, local government, and state government have been common in several states that have legalized adult use.⁶⁵ Due to these delays and the recentness of most of the initiatives, there are limited comprehensive analyses of these laws. The most in-depth of these assesses the legal frameworks in Colorado, Washington, Oregon, and Alaska, ultimately concluding that these states incorporated approximately one-third to one-half of identified public health best practices into their cannabis regulatory structures.⁶⁶

The lack of public health-oriented approaches in these laws likely reflects their origins. Advocates who advanced these initiatives consciously adopted the framing of alcohol policy as an effective political tool, urging voters to “Regulate Marijuana Like Alcohol.”⁶⁷ This framing was an evolution in approach by advocates, who moved away from arguments based primarily on personal freedom to also include those emphasizing tax revenue, social justice, and the differences in legal treatment of alcohol (an intoxicating substance that is widely available and lightly regulated) and cannabis (an intoxicating substance that is criminalized).⁶⁸ This line of argument appears to have resonated with voters, as these newly-branded legalization initiatives were substantially more successful than earlier efforts.⁶⁹ Given this framing, it is not surprising that the statutes enacted by the initiatives and the regulations that followed generally accord with alcohol policy.⁷⁰ Unfortunately, U.S. alcohol control laws frequently fail to reflect public health best practices, particularly with regard to preventing underage use and heavy consumption.⁷¹ As a result, “regulating marijuana like alcohol” has meant a pro-business approach that is not designed to reduce use.

Based on electoral results and public opinion surveys, momentum currently appears to favor legalization generally.⁷² The exact parameters of a new legal framework for cannabis, however, may not yet be established. One of the most pressing questions in the coming years will be whether legislatures can better incorporate public health goals into legalization laws compared to the approaches offered to date by advocates via the initiative process.

B. The Public Health Approach

A public health approach to cannabis legalization prioritizes public health over other policy goals. This article leverages the successes and failures of domestic and international approaches to other substances, most notably tobacco and alcohol, to outline a rubric for evaluation of public health best practices for cannabis regulation. To do so, it draws on several key resources, including reports and policy statements by governmental entities and non-governmental health organizations, international agreements, and health policy scholarship, to define the public health approach.

1. Existing Models: Health Policy Organizations and International Agreements

a. American Public Health Association

The American Public Health Association (APHA) released a policy statement in 2014 focused on prioritization of public health in the regulation of commercial cannabis.⁷³ APHA has similar policy statements relating to alcohol, tobacco, and substance use, as well as a prior statement on cannabis (but not legalization specifically).⁷⁴ Drawing from both tobacco and alcohol control, APHA lists five broad areas of concern to public health in cannabis legalization: 1) increased availability, 2) passive exposures, 3) quality control and consumer protection, 4) motor vehicle safety, and 5) health effects.⁷⁵

APHA proposes general strategies and action steps, for the most part without suggesting a specific standard. Based on alcohol control policy, APHA calls for 1) retailer liability for injuries to others (i.e., dram shop liability for overservice), 2) impaired driving enforcement, and 3) high minimum purchase age standards (generally supporting a minimum age of 21).⁷⁶ Based on tobacco control policy, APHA recommends 4) warning labels, 5) secondhand exposure measures (e.g., public location bans, restrictions on use in multi-unit housing), and 6) cultivation worker protections. Drawing from both alcohol and tobacco control, APHA recommends 7) taxation at levels sufficient to price minors out of the market and reduce access, 8) limits on the days and times of retail operation, 9) restrictions on outlet locations and geographic density, 10) constraints on advertising aimed at adolescents, children, communities of color, and groups of low socioeconomic status, and 11) continuing monitoring of regulatory interventions. APHA also calls for support and funding for health effects research; use of cannabis tax revenue to cover regulatory costs and to fund prevention, treatment, and research; and “development and availability of linguistically competent educational and informational materials for individuals with limited English proficiency.”⁷⁷

b. Framework Convention on Tobacco Control

The World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC)⁷⁸ and its implementing guidelines,⁷⁹ while not designed specifically for cannabis regulation, are a key touchstone for the modern evidence-based public health approach to product regulation and thus carry significant weight as a model for regulating cannabis. The FCTC is a widely adopted health treaty with 168 signatories that sets the global standard for tobacco control,⁸⁰ combining price and tax measures to reduce product demand, non-price strategies to reduce demand, and supply reduction interventions.

FCTC Article 8 targets protection from secondhand/environmental tobacco smoke,⁸¹ adopting as a fundamental principle that “[a]ll people should be protected from exposure to tobacco smoke[, and a]ll indoor workplaces and indoor public places should be smoke free.”⁸² The Implementing Guidelines clarify that any measures short of total elimination of smoking in a space or environment (e.g., ventilation, filtration) are ineffective and insufficient.⁸³ Given the similarities between tobacco smoke and cannabis smoke,⁸⁴ this approach strongly resonates for cannabis regulation.⁸⁵

Article 9 deals with regulation of product contents.⁸⁶ The Implementing Guidelines specifically note that “[f]rom the perspective of public health, there is no justification for permitting the use of ingredients, such as flavouring agents, which help make tobacco products attractive.”⁸⁷ The same can be said for additives in cannabis products intended to stimulate use or to attract youth or vulnerable populations.

Article 11 addresses packaging and labeling and obligates Parties to ensure that these elements are not “false, misleading, deceptive or likely to create an erroneous impression” about a product or its health effects.⁸⁸ Article 11 also requires health warnings for all products to be rotating, large, and clearly visible, to cover at least 30% (ideally at least 50%) of the product’s principal display area, and to include pictorial elements.⁸⁹ The Implementing Guidelines further encourage plain packaging requirements, which prohibit all branding elements.⁹⁰

Article 13 calls for a “comprehensive ban on advertising, promotion and sponsorship,” as consistent with applicable constitutional principles.⁹¹ To the extent a comprehensive ban is not possible, Article 13 obligates Parties to prohibit marketing that is false or misleading, require warnings on all advertisements, restrict the use of incentives, require disclosure of advertising expenditures, restrict or ban advertising using mass media, and restrict or prohibit industry sponsorship of event and activities.⁹²

Article 16 addresses sales to and by minors (age 18 or as set by relevant law) by requiring age verification, banning self-service product displays, prohibiting other products (e.g., sweets) in the form of tobacco products, limiting vending machine access to age-restricted areas, prohibiting free product giveaways, and prohibiting sale of small-quantity products that increase affordability.⁹³

Other FCTC provisions call for price and tax measures to reduce consumption,⁹⁴ effective public education campaigns,⁹⁵ demand-reduction measures focused on treatment and cessation,⁹⁶ reduction of illicit trade,⁹⁷ support for alternative commercial activities for industry-dependent workers,⁹⁸ and protection of the environment and the health of cultivation workers,⁹⁹ all of which have relevance to cannabis regulation.

c. CDC Task Force on Community Preventive Services

Using an evidence-based approach that considers both efficacy and cost-effectiveness, the CDC Task Force on Community Preventive Services recommends interventions to improve health across various policy areas, including both tobacco and alcohol. To reduce tobacco initiation, use, and secondhand exposure, the Task Force recommends: 1) comprehensive tobacco control programs; 2) increasing unit price; 3) implementing mass-reach health communication interventions; 4) adopting smokefree policies; and 5) mobilizing the community with additional interventions. ¹⁰⁰

To reduce and prevent excess alcohol consumption, the Task Force recommends: 1) dram shop liability; 2) electronic screening and brief interventions; 3) increasing taxes; 4) limits on days and hours of sale; 5) regulation of outlet density; and 6) enhanced enforcement of laws prohibiting sales to minors.¹⁰¹ The Task Force also recommends against privatization of retail sales.¹⁰²

d. Healthy People 2020

Managed by the U.S. Department of Health and Human Services, Healthy People is a collaborative initiative that sets national 10-year goals and measurable objectives to improve health and well-being of people and communities. The Healthy People 2020 leading health indicators for substance abuse and tobacco are, collectively: adolescent use in past 30 days, adult cigarette smoking, and adult binge drinking in the past month.¹⁰³ The same issues—adolescent use, use of inhaled or smoked products, and excessive or binge use—are among the most critical regulatory targets for cannabis. While framed as goals rather than specific policy prescriptions, the Healthy People 2020 objectives are highly relevant in assessing the design of cannabis laws and include several implicit policy recommendations. For example, the goal of eliminating laws that preempt local control implies a recommendation to include non-preemption in newly-created laws.

Relevant Healthy People 2020 substance use objectives include: 1) reducing youth use; 2) increasing youth disapproval of use and perception of risk; 3) reducing binge use; and 4) decreasing impaired driving fatalities.¹⁰⁴ Similarly, objectives for tobacco use include: 1) reducing use by adults and adolescents, 2) reducing initiation among children, adolescents, and young adults; 3) reducing proportion of nonsmokers exposed to secondhand smoke; 4) increasing proportion of persons covered by indoor worksite policies that prohibit smoking; 5) establishing smoke-free laws that prohibit smoking in public places and worksites; 6) eliminating state laws that preempt stronger local tobacco control laws; 7) increasing product taxes; 8) reducing proportion of adolescents and young adults exposed to product marketing; and 9) reducing illegal sales to minors by enforcing prohibitions on such sales.¹⁰⁵

2. Existing Models: Health Policy Scholarship

While there has been meaningful scholarship about cannabis criminalization and the potential for other regulatory alternatives for some time,¹⁰⁶ health policy scholarship focused on how to regulate legal cannabis from a public health perspective developed in earnest after passage of Colorado and Washington’s 2012 initiatives to legalize adult use.

In particular, much of the substantive scholarship in this area has been produced by researchers in the RAND Corporation’s Drug Policy Research Center.¹⁰⁷ Pacula et al. propose a cannabis-specific policy framework based on tobacco and alcohol control that centers on five policy objectives designed to minimize youth access and use, drugged driving, dependency and addiction, consumption of products with unwanted contaminants or uncertain potency, and concurrent use of cannabis and alcohol (particularly in public).¹⁰⁸ Toward this end, they recommend: 1) artificially high prices via taxation and enforcement; 2) a state monopoly on production, distribution, and/or sale; 3) restriction of licenses and monitoring of licensees; 4) limiting types of products sold, including additives, flavorings, and cannabinoid content; 5) restrictions on marketing to the extent possible under US law, including plain packaging requirements; 6) limiting public consumption; 7) measuring and preventing impaired driving, and 8) a comprehensive product tracking system.¹⁰⁹

Two other RAND papers present slates of key policy choices for state legalization without making specific recommendations. Kilmer emphasizes that “legalization is not a binary choice”¹¹⁰ and suggests a set of ten policy choices (stylized as the “10 P’s”):

• Production: the number of producers and amount of production to be allowed, locations where production will be allowed, and types of products to be allowed on the market;

• Profit motive: whether to allow profit-maximizing firms to enter the market or to restrict the market to nonprofit organizations, “for-benefit corporations,” or a state-run monopoly;

• Promotion: whether to allow advertising;

• Prevention: whether to devote resources to prevention efforts, including youth prevention, and how to fund such efforts;

• Policing and enforcement: how much time and effort to devote to enforcement of remaining prohibitions (e.g., on public consumption) and how to address remain black market cannabis producers and distributors;

• Penalties: how to sanction noncompliance, including license revocation, civil penalties, and criminal penalties;

• Potency: whether to limit THC content or other cannabinoids;

• Purity: whether and how to regulate mold, pesticides, and other contaminants, and whether to allow alcohol- or nicotine-infused cannabis products on the market;

• Price: how to shape cannabis price, including through license fees, regulations, and taxes; and

• Permanency: how much regulatory flexibility to incorporate into legal frameworks, such as creating independent commissions or including sunset provisions, to address changing evidence and new products.¹¹¹

Similarly, Caulkins et al. provide a “regulatory checklist” in eight categories: 1) types of products allowed; 2) cannabinoid content; 3) retail outlets and delivery; 4) sales to nonresidents; 5) pricing controls; 6) prevention and countermarketing; 7) vertical integration; and 8) local autonomy.¹¹² The authors emphasize the importance of careful consideration of policy alternatives in cannabis regulation and the necessity of thinking beyond alcohol control models:

A jurisdiction considering something other than marijuana prohibition needs to encourage serious conversations about each of these choices. Marijuana is a very different commodity from other regulated goods (even alcohol) and early-adopting states simply cannot use cookie-cutter regulations for alcohol to cover all of the important choices.¹¹³

Writing in an international context on behalf of the Transform Drug Policy Foundation for a Special Session of the United Nations General Assembly on the World Drug Problem, Rolles and Murkin make recommendations across production, price, tax, consumption methods, potency, packaging, retailer regulation, consumer regulation, retail outlets, and marketing. The authors make several of the same recommendations as other reports cited supra, and also add several specific elements, including: separation of ownership between production and retail entities; ¹¹⁴ restriction of home growth based on age and production capacity; ¹¹⁵ price controls; ¹¹⁶ taxation at both production and sales tiers based on THC content by weight;¹¹⁷ mandatory opaque, resealable, and child-resistant plastic containers;¹¹⁸ on-package messaging modelled on pharmaceuticals and tobacco products; ¹¹⁹ escalating penalties for noncompliance, including license revocation; ¹²⁰ restrictions on retailer locations near age-sensitive areas and prohibition of sales of non-cannabis products; ¹²¹ and a total ban on all forms of advertising, promotion and sponsorship based on WHO FCTC Article 13. ¹²² The authors also make several policy recommendations that less frequently appear in (or even contradict) other sources, including: promoting small-scale social clubs; ¹²³ avoiding directing excessive revenue to drug treatment, prevention, or other social programs to prevent dependence on cannabis sales revenue;¹²⁴ and encouraging non-smoked consumption methods, including vaporized products (contingent on additional research). ¹²⁵

Based explicitly on alcohol control policy lessons, Moser recommends policies targeting social availability, commercial availability, taxation and price, driving under the influence, advertising, and market structure.¹²⁶ Among the specific proposals that stand out from other frameworks are application of civil liability to social hosts who provide cannabis to minors at home and to commercial sellers/retailers (i.e., dram shop liability); mandatory training for servers and sellers; restrictions on outlet density; restrictions on home delivery; a prohibition on price promotions; zero tolerance laws for youth driving under the influence; permitting advertising in electronic media only when less than 15% of the audience is under 21; a government-controlled or non-profit market structure; limits on the number of licenses in each license tier and restrictions on production or volume per license; restrictions on vertical integration; prohibition of volume discounts between license tiers; and minimum price markups at the wholesale and retail levels.¹²⁷

Leveraging lessons learned from the specific experiences of Colorado and Washington, the first two states to legalize adult use, Carnevale et al. offer policy proposals in five areas: “cultivation, production, and processing; sales, consumption, and possession; taxes and finance; public health and safety; and governance.”¹²⁸ Notably, the authors explicitly adopt “practicality”¹²⁹ as their primary touchstone, rather than theoretically ideal policy.¹³⁰ As a result, there are several public health-oriented policies they note would be desirable, but do not recommend because they judge them to be impractical, including plain packaging,¹³¹ minimum unit pricing,¹³² and non-commercial or not-for-profit market structure.¹³³

Owing to the emphasis on practicality and likelihood of adoption, Carnevale et al. recommend a more limited, but still important, suite of policies. Those that add to previously cited proposals include:

• Restricting use to those 21 years and older with significant penalties for sales to minors;¹³⁴

• Maximum limit on sales quantity per person or transaction;¹³⁵

• Unitary recreational and medical regulatory system;¹³⁶

• Taxes designed to keep prices artificially high without fueling the illicit market;¹³⁷

• Robust data collection and performance monitoring;¹³⁸ and

• Restrictions on industry involvement in the regulatory process based on alcohol and tobacco control.¹³⁹

The authors supplement these specific recommendations within an overarching emphasis on regulatory flexibility, viewing as paramount the ability of government to adjust to new data, new products, and other developments.¹⁴⁰ They also aptly describe a key difference between existing regulatory approaches to tobacco and alcohol that is especially relevant to cannabis policy decisions:

[E]ven a brief examination of the US alcohol and tobacco industries illustrates how regulatory goals can affect markets, even within commercialized, for-profit models that share much in common. US alcohol and tobacco systems look quite similar at first blush; yet, alcohol regulations seek to limit use in specific circumstances (e.g., by youth or by adults at work, in public, or while driving) but do not seek to discourage use—that is, they do not attempt to reduce the size of the market. In contrast, current US tobacco regulations actively seek to reduce the size of the industry ….¹⁴¹

Barry and Glantz provide a detailed framework for assessing adult use cannabis laws based on a survey of public health best practices from tobacco control, arguing that alcohol control models are typically inadequate to protect public health. They offer a 30-point assessment across 11 policy areas,¹⁴²expanded in a subsequent paper to a 67-point framework across 16 policy areas.¹⁴³ Some of the included policy prescriptions are quite detailed and thus better suited to evaluating regulations than legislation,¹⁴⁴ but the most critical elements they recommend that have not already been discussed include:

• State health department as lead regulatory agency;

• Creation of advisory groups that have expertise in cannabis prevention and control with strict conflict of interest prohibitions and a prohibition on industry participation;

• Licensure fees that cover costs of administration and enforcement;

• Frequent, routine, and unannounced compliance checks with dedicated revenue;

• Prohibition on point-of-sale displays, with all products sold behind the counter;

• Prohibition on electronic commerce (e.g., sales via text message or social media);

• Prohibition on use of cartoon characters or imagery encouraging use or consumption;

• Prohibition on brand stretching or sharing;

• Prohibition on product placements or paid popular media promotions;

• Dedicated revenue for enforcement, prevention and control, and research;

• Smokefree laws that prohibit cannabis use where tobacco use is prohibited;

• Non-preemption of local smoking restrictions, licensing, and retail sales environment control;

• Prohibition on additives that are toxic or injurious (e.g., nicotine), enhance color or palatability (e.g., menthol), imply a health benefit (e.g., vitamins), or are associated with energy and vitality (e.g., caffeine); and

• Government approval of all packaging and labeling.¹⁴⁵

Cannabis regulation is a complex and multifaceted area that intersects with numerous areas of law (e.g., land use, insurance, professional regulation), but this article concerns itself exclusively with measures directly relating to protecting public health. Even with multiple public health frameworks to draw from, there remain several important health issues beyond the scope of this article. These include, among others, equity and social justice programs to ameliorate impacts of the War on Drugs,¹⁴⁶ restrictions on pesticide use and other elements of cultivation,¹⁴⁷ comprehensive product testing requirements,¹⁴⁸ cannabis worker protections,¹⁴⁹ constraints on actual or apparent conflicts of interest among state and local government employees and law enforcement personnel,¹⁵⁰ and protections for employees and renters against discrimination for cannabis use.¹⁵¹ While this paper focuses on specific provisions common across multiple public health best practice models for tobacco, alcohol, and cannabis regulation, such other legal elements also have clear ties to health and should receive due consideration and analysis.

This paper also focuses on state law. As such, it does not address cannabis regulation at the federal level or the interaction of cannabis regulation and federalism. Should the federal government alter its approach to cannabis, this would certainly have substantial implications for state laws; however, the public health approach outlined here (and advanced by others) would also apply to a potential federal legalization framework. Cannabis regulation on sovereign tribal lands and conflict with international treaty obligations are also beyond the scope of this article, though emerging cannabis legalization frameworks in Canada and Uruguay are likely to establish a path forward in one or both of these areas.

II. Public Health Approach Rubric for Legislative Adult Use Cannabis Legalization

Based on the foundational frameworks discussed in Part I, supra, this section applies a consolidated set of sixteen core public health elements common across existing recommendations and best practice compilations that are suitable for inclusion at the statutory level in proposed adult use legislation.¹⁵² These elements situate in three broad categories: 1) market and regulatory structures; 2) consumer-facing product and retailer regulation; and 3) youth, environmental exposure, and normalization. We apply these principles to a set of bills representing all active state legislation as of February 2019, as detailed in the Appendix.

A. Market and Regulatory Structures

1. Health Department Authority

The priorities and approaches of regulatory agencies will shape the effects of legalization nearly as much as initial enabling legislation. One of the most critical aspects of legalization legislation is therefore the government agency or agencies charged with developing and enforcing subsequent regulations. Legislatures may grant this authority to a variety of existing entities or create entirely new ones; however, from a public health perspective, the ideal approach is to designate the applicable health authority (i.e., state health department or equivalent) as the lead agency for this purpose.¹⁵³

Other authorities (e.g., tax boards) are capable of such regulation and may play supporting roles, but placing public health in the lead role fosters a regulatory approach that prioritizes public health over private industry profit when the two are in conflict, as is often the case.¹⁵⁴ Legislatures can appropriately charge the health authority with a mandate to limit or discourage use for the benefit of public health. Health authorities often operate with such goals in regulating tobacco, for example, and are well-positioned to do so for cannabis. However, to date, legalizing states have instead typically created new cannabis-specific agencies or given regulatory authority to existing alcohol control boards or departments of tax/revenue.¹⁵⁵ Such bodies are more likely to have mandates to encourage business development or manage revenue.

While, as of July 2019, several existing adult use states included their health department or equivalent among the administrative agencies tasked with implementation of adult use legalization,¹⁵⁶ none have made their health department the lead or primary agency, often vesting authority in liquor control boards or state commerce departments.¹⁵⁷ However, some proposed bills would establish the state health department as the lead regulatory authority, including in Hawaii¹⁵⁸ and Minnesota,¹⁵⁹ the latter of which also includes explicit reference to “public health standards and practices” as guiding principles for implementation.¹⁶⁰ A West Virginia bill would place adult use cannabis under the regulatory authority of the Bureau for Public Health,¹⁶¹ which also regulates the state’s medical cannabis program.¹⁶² A Missouri bill would vest primary authority for regulation in the Division of Alcohol and Tobacco Control, within the state’s Department of Public Safety.¹⁶³

Several other proposed bills would give the state health department authority over some aspects of the adult use regulatory program, such as regulating testing and manufacturing,¹⁶⁴ designing safety inserts,¹⁶⁵ administering community reinvestment grants and cannabis health and safety funds,¹⁶⁶ or collecting and analyzing data.¹⁶⁷ Others would place the health department in a more limited or advisory role, such as providing assistance on labeling rules¹⁶⁸ or consulting on development of a public health campaign regarding adult use cannabis.¹⁶⁹

2. State Monopoly or Non-Profit Requirement

State control of one or more aspects of the cannabis market is likely to help mitigate negative public health impacts of legalization. In alcohol policy, government monopolies allow control of price, location, advertising, and other elements that affect behavior, particularly excessive consumption.¹⁷⁰ Transitioning from state-run to privatized alcohol markets is associated with increased alcohol sales,¹⁷¹ including increased purchase frequency by younger drinkers.¹⁷² CDC’s Community Preventive Services Task Force specifically recommends against privatization of alcohol markets.¹⁷³ While no U.S. states have yet adopted a state-run cannabis market (likely due in part to federal illegality), Uruguay has adopted this approach in their national legalization framework.¹⁷⁴

As in states that adopted legalization via initiative, most legislative proposals also adopt a for-profit, commercial structure. One notable exception, however, is New Mexico’s S.B. 577, which would create a state monopoly on sales.¹⁷⁵

3. Unitary Regulatory System

Merging the regulatory structures for medical and adult use cannabis seeks to reduce regulatory complexity because complexity benefits larger business entities that have more extensive financial resources.¹⁷⁶ A unitary system is also more transparent and more consistent with regulation of other products, few of which are regulated under bifurcated systems depending on how they are used.¹⁷⁷ While tax rates and other aspects may differ between medical and adult use cannabis operations within a unitary market, entirely separate regulatory systems may encourage misuse of the medical system by either consumers or suppliers.¹⁷⁸ The added complexity also makes enforcement of regulations more difficult, a particular problem in resource-limited states.

Some existing adult use states have merged their medical and adult use regulatory systems.¹⁷⁹ Proposed bills in New Jersey,¹⁸⁰ New Mexico,¹⁸¹ Rhode Island, ¹⁸²Vermont, ¹⁸³ and West Virginia¹⁸⁴ would similarly create unitary systems overseeing both medical and adult use cannabis regulation.

In contrast, bills in Maryland,¹⁸⁵ Minnesota,¹⁸⁶ and West Virginia,¹⁸⁷ among others, would create new adult use regulatory frameworks without altering existing oversight of medical cannabis programs. By example, a New Jersey bill would create a new Division of Marijuana Enforcement in the Department of Law and Public Safety to oversee adult use cannabis regulation while leaving the state’s Department of Health in charge of regulating medical cannabis.¹⁸⁸ Illinois’s enacted bill similarly leaves the state’s medical cannabis program intact, with conflicts between the new adult use law and the medical program as related to medical cannabis patients to be resolved in favor of the medical program’s provisions.¹⁸⁹

4. Exclusion of Industry from Formal Regulatory Roles

As stated in the Implementing Guidelines to Article 5.3 of the WHO FCTC, “[t]here is a fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests.”¹⁹⁰ The WHO recognizes that the industry “sees itself as a legitimate stakeholder in tobacco control and attempts to position itself as a legitimate partner,” but unequivocally concludes that the industry “is not and cannot be a partner in effective tobacco control.”¹⁹¹ Tobacco industry interference precipitates policies that are scientifically inaccurate and do not adequately protect public health,¹⁹² and the industry routinely presents misleading scientific evidence.¹⁹³

The cannabis industry is not the tobacco industry (at least not yet¹⁹⁴), but the innate conflict between the cannabis industry’s interests and those of public health are no less concerning. Notwithstanding the potential medical applications of cannabis, which are not the focus of this analysis, adult use cannabis is a product with harmful health effects that can result in use disorders and dependence.¹⁹⁵ Even in the absence of objectively bad corporate behavior like that of the tobacco industry, the cannabis industry’s profit-seeking orientation¹⁹⁶ will ultimately lead to business strategies that increase demand and ensure continuing initiation of young consumers to replace those that stop using (whether by cessation or expiration).¹⁹⁷ These interests are unalterably opposed to those of public health.

Consequently, relations between the cannabis industry and regulatory agencies, advisory boards, and other entities should be limited to transparent, arms-length interactions. Among existing adult use states, Oregon has prohibited industry representatives from having formal policymaking roles, while Colorado and Alaska have allowed industry members to serve on advisory boards, and Alaska has even allowed two industry members to serve on a five-person committee to design the state’s regulatory system.¹⁹⁸

Most state proposals do not explicitly address industry participation in official regulatory bodies.¹⁹⁹ Those that do take positions at both extremes. Three Minnesota bills would bar cannabis industry members from serving on the advisory council created under the bill.²⁰⁰ In stark contrast, a New Mexico bill would require a comparable advisory committee to include an industry representative.²⁰¹ A New Hampshire bill would create an eleven-member advisory board with up to six positions potentially open to industry members, based on the description of expertise required.²⁰² Illinois’s enacted 2019 legislation reserves 1 of 24 positions on the newly created Adult Use Cannabis Health Advisory Committee for a representative of cannabis business licensees.²⁰³

5. Local Control and Non-Preemption

A well-crafted cannabis legal framework preserves the authority of local jurisdictions to regulate business operations within their borders in keeping with community needs and values. Local regulation is a cornerstone of public health law. While the federal government’s authority is supreme, state and local governments are closer to the people and typically better able to respond to the health needs of the community because of their “local knowledge, civic engagement, and direct political accountability.”²⁰⁴ Local government has more limited authority, and its authority is dependent largely on delegations of power under state law, but public health issues often place local officials on the “front line.”²⁰⁵

Local jurisdictions have historically been leaders in advancing public health approaches to health hazards. This is particularly evident in the history of tobacco control. Local jurisdictions were the first to adopt smoking restrictions for workplaces and public places, building critical mass and political will for states to follow suit.²⁰⁶ Advancing state laws that include preemption of local regulatory action is a favored tactic of the tobacco industry for precisely this reason and creates a significant obstacle for tobacco control.²⁰⁷ Eliminating preemption of local tobacco control measures in state law remains a goal of health advocates,²⁰⁸ and nascent cannabis laws should avoid creating similar obstacles to local regulation. Preemption (specifically ceiling preemption) of local regulation can hinder beneficial public health action in situations where cross-jurisdictional uniformity is not necessary.²⁰⁹

Existing legalizing states have generally preserved local authority to regulate cannabis businesses. Alaska, Colorado, Oregon, and Washington all authorize local jurisdictions to restrict or prohibit commercial cannabis operations within their borders (with Oregon requiring a general election referendum to do so).²¹⁰ California also vests local governments with such control,²¹¹ though the boundaries of this authority remain in question to some extent and subject to litigation and political maneuvering.²¹²

Proposed bills generally would give localities authority to limit or prohibit operation of cannabis business within their jurisdiction. As presented in Table 1, bills that explicitly address this issue preserve local authority to prohibit at least some classes of cannabis business entities within their borders, and the majority allow localities to completely prohibit cannabis operations.

Table 1:

Local Control and Non-Preemption Provisions in Proposed Bills

Type	State	Bills
Total local prohibition authorized	Arizona	S.C. Res. 1022 § 1 (4–410)213
	Connecticut	H.B. 5458 § 11
		S.B. 487 § 17
	Kentucky	S.B. 80 § 16
	Maryland	H.B. 632 § 1, art. XX (2)(C)
	Minnesota	H.F. 420 § 16
		H.F. 4541 § 4
	Missouri	H.B. 551 § A (195.2156)
	New Hampshire	H.B. 481 § 6 (318-F:11)
	New Jersey	A.B. 3581 § 12(b)
		A.B. 3819 §11(c)
		S.B. 2702 § 12(b)
		S.B. 2703 § 20(b)
		A.B. 1617 § 31 (art. 11, § 167(3)(b))
	New York	A.B. 3506 § 31 (art. 11, § 167(3)(b))
		S.B. 1527 § 31 (art. 11, § 167(3)(b))
		S.B. 3040 § 15 (221.05-a)214
	Vermont	H.B. 196 § 9 (tit. 7, § 863)
		S.B. 54 § 7 (tit. 7, § 863)
	Virginia	H.B. 2371 art. 3 § 3.2–4145
		H.B. 2373 art. 3 § 3.2–4150
	West Virginia	H.B. 2331 §§ 16A-17–4, −6(c)215
Total local prohibition authorized, with restrictions	Illinois [enacted]	H.B. 1438 § 55–25 (may prohibit, but may not regulate more restrictively than state law)
	New Mexico	S.B. 577 §§ 7–8 (may not allow and then later prohibit)216
	Rhode Island	S.B. 2895 § 1 (21–28.11–10) (must pass individual referendum for each class of establishment)
Partial local Prohibition authorized	New Hampshire	H.B. 722 § 7 (does not include growing/harvesting)
	New Mexico	H.B. 356 § 11(A)(3) (may prohibit retail cannabis product sales, but not personal production or medical-only sellers)

6. Revenue Allocation

It is essential that revenues from cannabis regulation and taxation fully cover, at minimum, the costs of administering and enforcing regulatory structures established to oversee the new market. Ideally, revenues should also cover reasonably anticipated economic externalities, including future health costs, though these are difficult to quantify in advance, particularly given the current state of scientific evidence regarding the effects of cannabis use. An appropriate model for estimating these costs may be to base the estimates on the effects of comparable levels of tobacco use (which are presently higher than cannabis use). Tobacco represents an historic failure to address such externalities. Tobacco use imposes massive costs on healthcare systems, but it was not until the 1998 Master Settlement Agreement (MSA) that states began to recover costs to their public health systems from smoking-related illnesses and death.²¹⁷ Despite large influxes of revenue from the MSA, states have continued to direct less than 1% of these funds to tobacco prevention programs and to fund such efforts at levels far below those recommended by the CDC, stymying their effectiveness.²¹⁸

The health effects of cannabis use are not yet well understood, making projections of future health costs challenging. Analogies to other substances, such as tobacco, are useful but incomplete because cannabis use patterns differ and appear to be in flux. For example, as of 2017 dried flower remained the most commonly used cannabis product and had the most direct parallels to tobacco use, but cannabis edibles and other consumption methods were growing in popularity.²¹⁹ Given the uncertainty of other costs, cannabis revenues should fund continuing research efforts to better understand the impact of legalization, including health effects, to avoid the accumulation of substantial unfunded costs as has occurred for tobacco. Cannabis revenue allocation (and underlying taxation levels) should adapt to this new evidence as it develops.

However, using cannabis revenues for other purposes is politically attractive. For example, Colorado legalization advocates made education funding via cannabis revenues a centerpiece of campaign advertisements in 2012.²²⁰ State budgets also tend to absorb funds that are not earmarked for specific purposes, as has often been the case for tobacco revenues.²²¹ However, there is also some risk in directing cannabis revenues exclusively to cannabis-related programs if regulatory agencies become dependent on the sales of the substance they regulate.²²²

Of the first four legalizing states, only Washington dedicated a portion of revenue to funding a continuous research program, though health departments in the other three states subsequently acted to support such efforts with existing funding sources or sought to obtain new funds.²²³ Later legalizing states, for example California, earmarked some annual funding for research, enforcement, and youth prevention, among other purposes.²²⁴

As described in Table 2, state proposals take dramatically different approaches to revenue allocation. Many appropriately set aside funds first to cover administration and enforcement. Some bills direct remaining funds primarily to cannabis-related programs, including public education, drug treatment, intoxicated driving prevention, mental health services, and cannabis research. However, other bills dedicate substantial revenues to other purposes, including infrastructure, business development, and state general funds.

Table 2:

Revenue Allocation in Proposed Bills

State	Bill	Selected Revenue Allocation Provisions
Arizona	S.C. Res. 1022 § 2 (art. 10, § 42–5453(C))	40% to general fund, 40% to public education grants, 20% to drug treatment and rehabilitation
Hawaii	H.B. 1581 § 2 (19)	Revenues first to implementation and enforcement, with excess to county infrastructure projects (50%) and local farm development grants (50%)
Illinois	H.B. 902 § 85	After implementation and enforcement costs: 50% to general fund; 30% to State Board of Education; 5% to voluntary alcohol, tobacco, and cannabis abuse treatment programs; 5% to Department of Public Health for public education campaign targeting youth and adults; 2.5% to state employee retirement system; 2.5% to teachers’ retirement system; 2.%% to state university retirement system; 2.5% to state police for drug recognition experts
Illinois [enacted]	H.B. 1348 § 900–15 (adding § 6z-107(c)(3))	Revenues first to administrative and enforcement costs, with remainder allocated 35% to general fund, 25% to criminal justice reform program, 20% for substance abuse and prevention and mental health, 10% for budget stabilization, 8% to local crime prevention programs relating to illicit cannabis and driving under the influence, and 2% to public education campaign
Kentucky	S.B. 80 §§ 18(4), 19, 20(3)	80% to statewide fund distributed 95% to offset costs of program administration and enforcement, with remainder to substance abuse treatment programs (1%), public education (1%), and law enforcement training (3%); 20% to local funds in jurisdictions with cannabis businesses
Minnesota	H.F.420 § 18; S.F. 619 § 18	$10 million annually to small businesses as part of a social justice program; remaining revenues 60% to the state’s general fund, 10% to mental health, 10% to police training, 10% to department of health research, 10% to education and public health programs
Minnesota	H.F. 465 § 25	Revenues first to administration, then 40% mental health services, 40% early childhood education, and 20% to health department for education and public health program
Missouri	H.B. 551 § A (195.2162(2))	Revenues primarily to the state’s general fund
New Mexico	H.B. 356 § 54	Revenues support cannabis regulation fund, community grants reinvestment fund, cannabis health and safety fund, cannabis research fund, and local DWI grant program
New York	A.B. 1617 § 32; A.B. 3506 § 32; S.B. 1527 § 32; S.B. 3040 § 32	$1 million to revolving loan fund for licensees and microbusinesses; $1 million to state university to research and evaluate implementation and effects of law, including public health impacts; $750,000 for license tracking and reporting; $750,000 to track and report violations of remaining cannabis laws; remaining funds to state lottery fund (25%), drug treatment education fund 25%), and community grants reinvestment fund (50%)
Virginia	H.B. 2371, art. 6 § 3.2–4155(C)	67% to general fund; 33% to retail marijuana education support fund to be used exclusively for public education
Virginia	H.B. 2373, art. 5 § 3.2–4158(D)	$20 million to Veterans Treatment Fund; remainder 30% to localities with cannabis businesses, 35% to general fund for Standards of Quality basic aid payments, 35% to highway maintenance and operation fund
West Virginia	H.B. 3129 § 5B-8–13	Revenues in excess of operating costs toto teacher compensation and public employee insurance (25%), infrastructure (35%), law enforcement and community fund (15%), small business fund for grants/loans (15%), and public employee retirement system (10%, up to $2 million with excess to general fund)

Legislatures are at times plain in their intention to generate significant revenue from cannabis. For example, a Hawaii bill includes a provision stating, “The legislature finds that it is high time Hawaii begins to reap the revenue benefits from taxing adult cannabis use.”²²⁵ Similarly, several New York bills would explicitly require the responsible agency to regularly review tax rates and recommend changes to further three purposes: “maximizing net revenue,” minimizing illegal industry, and discouraging underage use.²²⁶

7. Enforcement and Liability

Unannounced compliance checks, including those using underage decoy buyers, are a key component of effectively enforcing retailer compliance regarding sales to minors. Existing evidence from tobacco and alcohol control indicates that active, frequent enforcement utilizing escalating penalties, up to and including license revocation, is appropriate and effective to influence retailer behavior and reduce sales to minors.²²⁷ In contrast, the absence of compliance testing and penalties for violation limits the effectiveness of state laws prohibiting sales to minors.²²⁸ To counter the potential for adult use markets to increase youth access and the appeal of cannabis to youth, maintaining high retailer compliance is crucial.²²⁹

Among the first four adult use states, Washington provides for an unannounced compliance check program, but Alaska, Colorado, and Oregon do not.²³⁰ Compliance reviews in Washington and Colorado in the early stages of legalization found overall high levels of compliance by retailers (88% and 91%, respectively).²³¹

Several proposed bills do not specifically provide for license revocation for sales to minors, but leave establishment of grounds and procedures for license revocation to future regulations.²³² Some bills do provide for specific penalties for sales to minors. For example, multiple New Jersey bills would penalize employees or agents of a licensee with increasing civil penalties up to $1,000 per violation and potentially result in revocation of the licensee’s license following a hearing.²³³ Illinois’s enacted 2019 legislation authorizes random and unannounced inspections by regulators and state and local law enforcement,²³⁴ and provides for broad license suspension and revocation powers for violations generally,²³⁵ but does not explicitly apply these penalties to sales to minors.²³⁶

Civil liability for retailers provides additional, indirect regulation on the behavior of commercial actors. Borrowed from alcohol service, commercial host or “dram shop” liability (sometimes called “gram shop liability” for cannabis²³⁷) is retailer liability for injuries resulting from overservice or underage service and is a well-established but non-universal principle of state statutory tort law that relies primarily on deterrence effects.²³⁸ Thirty states have statutes imposing civil liability on establishments that sell or serve alcohol to individuals whose intoxication results in harms; twenty-two restrict liability to service of obviously intoxicated persons or persons under the legal drinking age.²³⁹ Dram shop liability laws are associated with reductions in alcohol consumption and fatal crash ratios.²⁴⁰

Despite the prevalence of dram shop liability laws nationally, none of the reviewed bills included provisions explicitly detailing retailer liability for cannabis. However, other state statutory or case law may impose such liability.

B. Consumer-Facing Product and Retailer Regulation

1. Packaging and Labeling

A comprehensive public health approach to warning labels for cannabis and cannabis products should include evidence-based, effective measures from global tobacco control, such as plain packaging, graphic warning labels, and rotating health messaging.²⁴¹ However, states may ultimately address these elements by rule rather than statute.

a. Packaging

Packaging is fundamentally a marketing tool, one that other industries, including tobacco and alcohol, have used to great effect. As with these products, branding on cannabis products offers the industry a secondary marketing opportunity to make up for other venues that may be legally restricted.²⁴²

Plain packaging, devoid of all branding elements other than the brand name and product variant in plain text and specified font, is one of the most important and effective advances in tobacco control. Plain packaging improves the effectiveness of warnings, reduces product appeal to adolescents and young adults, and increases attention and perception of harm, among other benefits.²⁴³ While existing adult use states have not adopted plain packaging requirements,²⁴⁴ Oregon allows producers and manufacturers to bypass labeling and packaging approval if they use pre-approved, generic labels and packaging,²⁴⁵ effectively creating an opt-in plain packaging approach. Outside the U.S., Canada²⁴⁶ and Uruguay²⁴⁷ have adopted plain packaging provisions as part of their national adult use cannabis legalization frameworks.

Two Minnesota bills would require minimalist packaging that includes most elements of a plain packaging standard, prohibiting product depiction, cartoons, and any images other than the company logo or name.²⁴⁸ (The allowance for a logo is the only departure from a comprehensive plain packaging standard.) Like many other states’ proposed or enacted laws, this bill would also require the packaging to be opaque and child-resistant.²⁴⁹

Several bills have packaging restrictions that target attempts to appeal to youth, but they often use broad, vague language. Two Vermont bills would prohibit packaging that makes a cannabis product more appealing to children.²⁵⁰ Two New Mexico bills would prohibit packaging that is “designed to be appealing to a child.”²⁵¹ A Hawaii bill would require future regulations to prohibit “the use of any images designed or likely to appeal to minors, such as cartoons, toys, animals, or children; and any other likeness of images, characters, or phrases that are popularly used to advertise to children.”²⁵² Illinois’s enacted 2019 legislation contains a nearly identical provision, but adds a prohibition on “any packaging or labeling that bears reasonable resemblance to any product available for consumption as a commercially available candy.”²⁵³

A Virginia bill uses particularly weak language with respect to packaging, prohibiting products labeled or packaged “in a manner that is specifically designed to appeal particularly to persons under 21.”²⁵⁴ Manufacturers could easily escape culpability under such a standard by arguing that they design their packaging to appeal to lawful young adult consumers (i.e., 21 and over) and that any appeal to underage consumers is unintentional. One need look no further than the online marketing tactics of e-cigarette maker JUUL Labs Inc. (now partially owned by Philip Morris USA parent company Altria) and the company’s subsequent statements to see how an industry may deploy such a defense to parry accusations of inappropriately targeting youth.²⁵⁵

b. Warning Labels

Warning labels have demonstrated efficacy in tobacco control, influencing risk perceptions, health knowledge, motivation to quit, and appeal to youth. Warnings are most effective when they are large, prominently positioned, clearly worded, periodically changed to reduce familiarity, and designed to include pictorial content in addition to text.²⁵⁶

As of July 2019, none of the existing adult use states required a warning label with pictorial content like that of tobacco graphic warning labels, though some do require a small (likely ineffective) warning symbol for cannabis products.²⁵⁷ Similarly, none of the proposed bills include specific requirements for rotating health warnings or pictorial content. However, many bills would vest decision-making authority for package warnings in one or more regulatory bodies,²⁵⁸ meaning these entities could potentially adopt such requirements.

For example, four New Jersey bills would require a warning label to “adequately inform consumers about safe marijuana use and warn of the consequences of misuse or overuse.”²⁵⁹ A New Mexico bill would require labels that warn of potential adverse effects.²⁶⁰ Six New York bills would authorize the responsible agency to seek the assistance of the state health department in developing regulations for warning labels including “any potential impact on human health resulting from the consumption of marihuana products … if such labels are deemed warranted.”²⁶¹

Bills that do specify warning content tend to include minimal warnings similar to existing alcohol warning labels, which are the product of a voluntary code and do not appear to be particularly effective.²⁶² These types of warning labels address only specific populations (e.g., children, pregnant women), use by minors, or driving while intoxicated.²⁶³ Some are even more basic, such as a West Virginia bill that would simply require a warning that the product is intoxicating and to keep it away from children.²⁶⁴

Illinois’s enacted 2019 legislation charges the state’s Department of Public Health with defining and updating health warnings for cannabis, but also includes specific warning language to be used unless modified by rule. Among other label content, the bill requires all cannabis products to include a statement that “use can impair cognition and may be habit forming” and requires cannabis that may be smoked to include the statement, “Smoking is hazardous to your health.”²⁶⁵ While there are no requirements for pictorial or rotating elements in the legislation and some of the specified language does not reflect best practices, these are nonetheless a rare example of health-specific cannabis warnings.

2. Product Taxes

Taxes on products like tobacco and alcohol are an effective means of decreasing consumption, particularly among adolescents, who are generally more price-sensitive.²⁶⁶ However, the existence of a robust illicit market for cannabis is distinguishing and requires a balanced approach in which taxes are high enough to discourage abuse and youth use, but low enough to establish a stable legal market.²⁶⁷ While the public health approach distinctly prioritizes health interests over commercial interests, the legal market does have public health benefits over the illicit market with respect to age restriction, labeling, and product testing, among other areas. Experimentation among implementing jurisdictions will likely be necessary to identify characteristics of the supply and demand curves for legal cannabis and establish an ideal level of tax, which may also change as the legal market takes hold.

As shown in Table 3, state proposals would take a variety of approaches to taxation. Illinois’s enacted 2019 legislation is notable not only because it was the only proposed bill to pass as of July 2019, but also because of its unique taxation approach. The legislation differentiates among cannabis products by THC content, taxing more potent products at a rate more than double that of lower-potency products (25% sales tax on products over 35% THC compared to 10% tax on products at or below that threshold) and also distinguishes between infused products and other product categories.²⁶⁸

Table 3:

Tax Rates in Proposed Bills

State	Bill(s)	Selected Provisions
Escalating sales/excise tax with defined increase
New Jersey	A.B. 3581 § 11(a)	7% sales tax, escalating over 5 years to 15%
New Jersey	A.B. 3819 § 10(a)	7% sales tax, escalating over 5 years to 25% 10% excise tax, escalating to 25%
New Jersey	S.B. 2702 § 11	in 4 years; includes prevailing sales tax
Escalating sales/excise tax with undefined adjustment
Illinois	H.B. 902 § 80	10% excise tax to be adjusted annually for inflation
New Hampshire	H.B. 481 § 8 (77-H:2(I))	$30 per ounce of flower; $10 per ounce of other plant material; $15 per immature plant; adjusted for inflation
New York	A.B. 1617 § 33; A.B. 3506 § 33; S.B. 1527 § 33; S.B. 3040 § 33	$0.62 per gram of flower and $0.10 per gram of leaves cultivation tax; $1.35 per immature plant nursery tax; 15% excise tax on all nonmedical purchases; rates to be adjusted every 2 years according to cost-of-living adjustment and to be regularly reviewed; local tax up to 2%
Sales/excise tax > 10%
Hawaii	S.B. 686 § 2(329-I)	15% excise tax
Illinois [enacted]	H.B. 1438 § 65–10	25% excise tax on cannabis over 35% THC; 10% tax on cannabis at or below 35% THC; 20% tax on cannabis-infused products 15% gross revenues of processor;
Minnesota	H.F. 465 §§ 1 (subdiv. 2), 3, 12	12% gross receipts from retail sales and lounge admission; optional 3% local tax
Missouri	H.B. 551 § A (195.2162)	20% at transfer from cultivator; additional local taxes allowed
Vermont	H.B. 196 § 16 (tit. 32, §§ 7901–02)	11% excise tax; optional 3% local tax
West Virginia	H.B. 2331 § 16A-17–7(a)	15% excise tax; optional 5% local tax
West Virginia	H.B. 3129 § 5B-8–13	17.5% excise tax; optional 6% local tax
Sales/excise tax ≤ 10%
Kentucky	S.B. 80 § 20(2)	Excise tax 10% on flower, 5% on other plant parts, 8% on immature plants; additional sales tax permitted but not specified
New Hampshire	H.B. 722 § 2 A.B. 4497 §§ 18(a),	8% sales tax 5.375% on receipts from retail sale
New Jersey	19(a)	in addition to existing sales tax; additional local tax up to 2%
New Jersey	S.B. 2703 §§ 18(a), 19(a)	5.375% in addition to state sales and use tax; optional 2% local tax
New Mexico	H.B. 356 §§ 48–50	9% excise tax (none on medial); up to 3% municipal tax; up to 3% county tax
New Mexico	S.B. 577 §§ 33–34	4% state excise tax; optional 4% municipal tax; optional 4% county tax
Vermont	S.B. 54 § 14 (tit. 32, § 7901–02); H.B. 250 § 14 (tit. 32, § 7901–02)	10% excise tax; 1% optional local tax
Virginia	H.B. 2373 art. 5 §§ 3.2–4158–59	10% sales tax; optional 5% local tax
Virginia	H.B. 2371 §§ 3.2–4155(A), 3.2–4156(A)	9.7%; optional 5% local tax

3. Product Access

Unlike tobacco (and in many states alcohol), adult use cannabis is (so far) sold only in age-restricted venues. Provided this restriction remains in place and subject to active and comprehensive enforcement, it alleviates some product access concerns. The Family Smoking Prevention and Tobacco Control Act of 2009 prohibited tobacco vending machines and self-service displays outside of adult-only facilities.²⁶⁹ However, access restrictions address more than youth use. Total prohibitions on tobacco vending machines in all locations are associated with reduced smoking propensity, with those who live in an area with a total prohibition less likely to smoke.²⁷⁰

Three Vermont bills would prohibit any direct customer access to cannabis products in a retail shop and require all products to be stored behind a counter or similar barrier.²⁷¹ Two Virginia bills would prohibit vending machines, drive-through windows, and internet-based sales platforms, among other restrictions.²⁷² Illinois’s enacted 2019 legislation similarly prohibits drive-through windows and vending machines.²⁷³ In contrast, two bills in Hawaii would explicitly allow operation of vending machines.²⁷⁴

There is some debate as to public health best practices with respect to allowing product delivery. Deliveries are difficult to regulate²⁷⁵ and increase the risk of illegal youth access, particularly given the inadequacy of most age verification approaches.²⁷⁶ However, Health Canada acknowledged an advantage to some cannabis delivery models in that their discretion (compared to more visible brick-and-mortar retail outlets) may not encourage increased usage.²⁷⁷ The Canadian Public Health Association also expressed concern that storefront retailers could stimulate increased product variety and noted that a delivery-only system (as Canada operated for its medical cannabis program) “eliminates the likelihood of placement of shops near areas where children congregate, and concerns regarding signage and advertising for such shops.”²⁷⁸

Combined with the risk that storefront retailer concentration may normalize and increase use (based on evidence from tobacco and alcohol control²⁷⁹), cannabis delivery may offer both benefits and risks for public health, and a total prohibition on delivery may not ultimately be ideal. However, age verification processes would require substantial improvement in order to realize potential benefits while mitigating risks. As with many other open questions regarding cannabis regulation, as evidence develops it will be far easier to liberalize an overly restrictive policy than to attempt to eliminate an established facet of the market.

Of those bills that explicitly address delivery, seven bills in four states would prohibit it, while sixteen bills in nine states would permit it, as noted in Table 4, below.

Table 4:

Cannabis Delivery in Proposed Bills

Type	State	Bills
Delivery Prohibited	Illinois [enacted]	H.B.1438 §§ 15–65(n)(9)-(10)
	Minnesota	H.F. 420 § 6(9); S.F. 619 § 6(9)
	Vermont	H.B. 250 § 907(e);
		S.B. 54 § 7 (tit. 7, § 907(e))
	Virginia	H.B. 2371 § 3.2–4142(B)(2)(d);
		H.B. 2373 art. 2 § 3.2–4146(B)(2)(d)
Delivery Permitted	Connecticut	S.B. 487 § 18(5)
	Hawaii	H.B. 1581 § 2(11)(a)(6)
	Illinois	H.B. 902 § 935(3.5)
	Kentucky	S.B. 80 § 2(3)(e)
	New Hampshire	H.B. 481 § 6 (318-F:9(I)(g))
	New Jersey	S.B. 2703 § (27)(h);
		A.B. 4497 § (27)(h)
	New York	S.B. 1509 § 130(7);
		A.B. 2009 § 130(7);
		A.B. 1617 § 11(165)(5);
		S.B. 1527 § 11(165)(5);
		A.B. 3506 § 11(165)(5);
		S.B. 3040 § 11(165)(5)
	Vermont	H.B. 196 § 9 (tit. 7, § 907(c))
	West Virginia	H.B. 3129 § 5B-8–8(1);
		H.B. 2376 § 11–16A-8(1)

4. Outlet Density Restrictions

Alcohol outlet density is positively associated with excessive consumption and related harms.²⁸⁰ Because this finding applies to both on-and off-premises outlets (i.e., both bars and liquor stores), there are parallels to cannabis regulation whether or not a jurisdiction permits on-site consumption. Higher tobacco outlet density is also associated with increased youth smoking rates,²⁸¹ and outlet density also affects adult smoking via interaction between price sensitivity and access costs, including travel time.²⁸² While the economics of cannabis markets and their impact on youth and adult use are less well-established than those of alcohol and tobacco, broadly similar effects are likely and a reasonable basis for limiting cannabis retail outlet density to protect public health.

A New Jersey bill would set a statewide maximum of 218 licenses, including 98 medical licenses, with each legislative district receiving at least 2 licenses and the remaining 40 licenses considered at-large.²⁸³ Illinois’s enacted 2019 legislation prohibits location of a retail cannabis dispensary within 1,500 feet of the property line of any pre-existing dispensary.²⁸⁴

In contrast, some states address density from the perspective of minimum rather than maximum outlets. Another New Jersey bill would require a “sufficient number of [retailers] to meet the market demands of the state, and giving regard to geographical and population distribution.”²⁸⁵ A separate New Jersey bill would require a minimum one retail store per county, amounting to 21 in the state, but would allow local governments to set maximums to account for population distribution and consumer access.²⁸⁶ A West Virginia bill would set a minimum of one retail cannabis store for every ten retail liquor stores, though regulators could reduce this if there are an insufficient number of qualified applicants.²⁸⁷

5. Day and Time Operating Restrictions

Evidence from alcohol control indicates that limits on the days and hours during which alcohol can be sold are an effective intervention to reduce excessive consumption and related harms. Studies that support the effectiveness of these approaches typically assess the effects of removing existing restrictions, demonstrating an association between such a change and increased consumption and motor vehicle-related harms.²⁸⁸ Studies on imposing new limits are lacking. However, a systematic review of studies on day and time operating restrictions (as well as outlet density) found that most studies support the existence of an effect on one or more key outcomes (overall alcohol consumption, drinking patterns, and damage from alcohol).²⁸⁹ A precautionary approach to cannabis based on existing alcohol control evidence is warranted given the similar intoxicating potential of cannabis use.

State proposals in general do not address cannabis establishment operating hours, leaving them to implementing regulations or local rules. However, at least three bills address operating hours at the statutory level. Bills in New Hampshire and West Virginia would leave specific operating hour restrictions to implementing regulations, but stipulate that the regulations not allow retailers to operate before 6:00 a.m. or after 11:45 p.m.²⁹⁰ Illinois’s enacted 2019 legislation limits dispensary operating hours to between 6:00 a.m. and 10 p.m.²⁹¹

C. Youth, Environmental Exposure, and Normalization

1. Minimum Purchase Age

All U.S. states have adopted a legal drinking age of 21, though many did not do so until pressured by the federal government in the 1980s.²⁹² A growing number of jurisdictions have also raised their minimum legal age for tobacco purchase to 21.²⁹³ All existing state adult use cannabis laws have established 21 as the minimum purchase and possession age.²⁹⁴ Notably, Canada has adopted a minimum age of 18,²⁹⁵ consistent with the country’s minimum alcohol purchase age.²⁹⁶ As with alcohol, provinces can adopt their own higher age minimums for cannabis.²⁹⁷

Based on existing public health evidence, a minimum age of 21 is the most appropriate standard for cannabis. Like alcohol, cannabis has risks associated with intoxicated driving.²⁹⁸ Raising the minimum age for alcohol was associated with a reduction in motor vehicle accidents,²⁹⁹ and similar public health protection is appropriate for cannabis. Raising the minimum age for alcohol was also associated with decreased alcohol consumption among those ages 18–20 and 21–25.³⁰⁰ Based on existing scientific evidence, the potential negative effects of cannabis use on brain development³⁰¹ (which continues up to approximately age 25) strongly support efforts to reduce consumption by young adults. Assuming similar policy effects on cannabis consumption as for alcohol, a minimum age of at least 21 is prudent.

In nearly all cases, proposed legislative adult use bills set 21 as the legal age for purchase and possession³⁰² (as does Illinois’s enacted 2019 legislation³⁰³). The sole exceptions are two bills in Hawaii that would set the age at 18.³⁰⁴ However, both of these bills are primarily aimed at decriminalization, rather than the establishment of a legal adult use cannabis market in the state.³⁰⁵ Additionally, a New Jersey bill would allow cannabis delivery staff to be as young as 18,³⁰⁶ though the bill would authorize sales only to those over 21.³⁰⁷

2. Flavors and Other Additives

Flavors have documented impacts on attracting young smokers to traditional tobacco products³⁰⁸ and e-cigarettes.³⁰⁹ Flavors disguise the unpleasant taste of smoke, and some have even more far-reaching effects. Menthol, for example, contributes to nicotine dependence through behavioral reinforcement³¹⁰ and increases nicotine exposure by encouraging breath holding.³¹¹ In 2009 FDA banned characterizing flavors in cigarettes.³¹² This prohibition controversially failed to include menthol cigarettes or flavored non-cigarette tobacco (e.g., cigars), but still succeeded in reducing the probability of being a smoker and number of cigarettes smoked among adolescents.³¹³ Local jurisdictions are now leading efforts to prohibit other flavored tobacco products, including electronic tobacco products (e.g., JUUL®) that have rapidly increased in popularity among youth.³¹⁴

In alcohol policy, “control jurisdictions” (those that operate monopolies over some aspect of distribution) have banned or restricted a variety of products due to flavoring that appeals to youth, among other reasons.³¹⁵ The FDA has also acted to prohibit alcohol manufacturers from adding caffeine to their products, deeming it an “unsafe food additive” in the context of alcoholic malt beverages.³¹⁶

Two Vermont bills would prohibit including nicotine or alcoholic beverages in cannabis products offered for sale.³¹⁷ A Virginia bill would prohibit additives in edible products that are toxic or harmful to humans or are specifically designed to make the product more addictive or to appeal to persons under 21.³¹⁸ A New Hampshire bill would similarly require the newly created regulatory agency responsible for cannabis in the state to promulgate regulations that include “a prohibition on any vaporization device that includes toxic or addictive additives,”³¹⁹ and would also explicitly prohibit nicotine as an additive.³²⁰ A Kentucky bill would also charge the regulatory agency with restricting additives “that are toxic or increase the likelihood of addiction.”³²¹ None of the proposed bills explicitly prohibits flavoring agents, though implementing regulations could address this and other shortcomings.

In most states, detailed determinations on questions such as which additives are considered toxic, addictive, or attractive to youth would be answered by applicable regulatory agencies consistent with the state’s administrative rulemaking procedures. For example, in California’s adult use framework, the state’s Department of Public Health oversees manufactured cannabis products and regulates what additives are permitted.³²² Among other elements, the Department prohibits manufacturing cannabis products containing alcoholic beverages and those with additives that “increase potency, toxicity, or addictive potential,” including nicotine and caffeine.³²³ Illinois’s enacted 2019 legislation similarly vests the Department of Public Health with authority to adopt and enforce rules for the manufacture and processing of infused products, but does not specifically address additives.³²⁴

3. Advertising and Marketing

Restrictions on tobacco advertising and marketing efforts are among the most universally recommended policy interventions in tobacco control, as reflected in WHO FCTC Article 13’s call for a “comprehensive ban on advertising, promotion and sponsorship” as consistent with applicable constitutional principles.³²⁵ A total ban is likely inconsistent with U.S. law, and indeed the caveat for national constitutional principles was in part shaped by opposition from the U.S.,³²⁶ which nevertheless remains one of only a small number of WHO member states that has not ratified the treaty.³²⁷ The U.S. Surgeon General concluded that tobacco advertising and promotional activities are causally related to youth smoking initiation and continuation,³²⁸ and the WHO attributed one-third of youth tobacco experimentation to exposure to tobacco advertising.³²⁹ Alcohol advertising exposure is similarly associated with youth initiation and with overconsumption.³³⁰

Restrictions on speech are disfavored under First Amendment jurisprudence; however, government regulation of commercial speech to protect consumer health and safety is a well-supported exercise of public health authority when applied within appropriate parameters. Commercial speech is speech proposing a commercial transaction, defined as a form of advertising that identifies a specific product for the purpose of economic benefit. While commercial speech nominally receives less constitutional protection than other forms of speech (and received none until 1975), these protections are still significant.³³¹ For commercial speech about a lawful product that is truthful and not misleading, government must show that it has a substantial interest, that the regulation of speech advances that interest, and that the regulation is no more extensive than necessary to serve the government’s stated interest,³³² a familiar test originating in Central Hudson.³³³

Government has interests in regulating advertising that increases use of harmful products, markets age-restricted products to youth, or misleads the public.³³⁴ Government interest in controlling cannabis use to protect public health is almost certainly substantial. State interests in protecting health, safety, and welfare are almost always found to be substantial, including interests in prevention of youth smoking, traffic safety, and temperance,³³⁵ all three of which are closely related to cannabis use, as well. As a result, the key issues for restrictions on cannabis advertising will be the extent to which the regulations directly advance this interest and whether the restrictions are more extensive than necessary.³³⁶

A Connecticut bill would prohibit “any type of marketing and advertising of the sale of recreational marijuana,”³³⁷ although the constitutionality of such a broad provision may be questionable.³³⁸ Other Connecticut bills would bar “mass-market campaigns that have a high likelihood of reaching children,”³³⁹ a stricter standard than those setting audience composition ceilings (e.g., prohibiting advertising in publications or media where the percentage of viewers under the legal age for purchase is reasonably expected to be above a certain threshold³⁴⁰). A New Hampshire bill would similarly prohibit “mass-market campaigns that have a high likelihood of reaching minors,” as well as promotional products and product giveaways.³⁴¹

A New Jersey bill would restrict advertising “in ways that target or are designed to appeal to [persons under 21],” including depictions of persons under 21 or the presence of objects suggesting the presence of a person under 21, such as toys or cartoon characters, and also restricts “any other depiction designed in any manner to be especially appealing to a person under 21.”³⁴²

Multiple New Jersey bills would also impose restrictions on cannabis advertising, including:

• Limiting retailers to a single sign of up to 1,600 square inches (approximately 11 square feet) visible to the general public;

• Prohibiting advertising “on television, radio or the Internet between the hours of 6:00am and 10:00pm;”³⁴³

• Requiring “reliable evidence that no more than 20 percent of the audience … is reasonably expected to be under [21]”;

• Prohibiting marketing using location-based devices (e.g., cell phones) except under limited circumstances;

• Prohibiting sponsorship of charitable, sports, musical, artistic, cultural, social, or other similar events absent “reliable evidence” that no more than 20% of the audience is expected to be under 21; and

• Prohibiting advertising within 200 feet of schools, recreation centers, parks, child care centers, playgrounds, public pools, libraries, or on public transit vehicles, transit shelters, or on or in public owned and operated property.³⁴⁴

A New Mexico bill would explicitly prohibit cannabis product advertising via billboard, radio, television, or other broadcast media.³⁴⁵ Anticipating possible constitutional challenge, the bill also provides that this prohibition would cease to be in effect in the event of federal cannabis legalization.³⁴⁶ The bill would also prohibit advertising that:

• is false, deceptive or misleading, including unproven health benefit claims;

• depicts consumption by persons under 21;

• is designed using cartoon characters;

• mimics other product brands;

• is within 300 feet of a school, church, or daycare center;

• is in public transit vehicles or stations or on publicly owned or operated property; or

• is an unsolicited internet pop-up.³⁴⁷

Illinois’s enacted 2019 legislation similarly prohibits advertising that:

• is false or misleading;

• promotes overconsumption;

• depicts actual consumption;

• depicts consumption by a person under 21;

• “makes any health, medicinal, or therapeutic claims”;

• includes “cannabis leaf or bud” imagery;

• includes images “designed or likely to appeal to minors, including cartoons, toys, animals, or children, or any other likeness to images, characters or phrases that is designed in any manner to be appealing to or encourage consumption” by persons under 21;

• is within 1,000 feet of schools grounds or a playground, recreation center, child care center, public park, public library, or game arcade not restricted to adults;

• is on or in public transit vehicles or shelters;

• is on or in publicly owned or operated property.³⁴⁸

The Illinois legislation also prohibits promotions incorporating cannabis giveaways or any games or competitions related to cannabis consumption.³⁴⁹

4. Public Use and On-Site Consumption

Decades of research have firmly established the link between tobacco smoke and various serious health harms to nearly every organ of the human body, as well as cancer, inflammation, fetal harm, and impaired immune function.³⁵⁰ Secondhand exposure similarly causes a variety of harms with no risk-free level of exposure.³⁵¹ The similarity of tobacco smoke and cannabis smoke³⁵² is therefore cause for concern. Moreover, there is already substantial evidence for a relationship between cannabis use and negative respiratory effects,³⁵³ as well as evidence for associations with cardiovascular disease, respiratory disease, neurological disease, and cancer.³⁵⁴

The establishment of comprehensive smokefree laws in states and localities over the past several decades is an important public health achievement that protects the health of employees in enclosed workplaces as well as countless members of the community in public places. Similar restriction on the public use of cannabis and cannabis products is appropriate to avoid undermining public health progress by allowing smoking (of any type) in public locations or re-normalizing smoking behavior generally.³⁵⁵

Social equity considerations that attach to public smoking bans when applied to cannabis must be addressed,³⁵⁶ but it is typically much easier to liberalize a restrictive policy than to ratchet up restrictions on behavior. The long public health battle to reduce secondhand smoke exposure in bars, restaurants, and other public locations is a key example of the latter.³⁵⁷ At minimum, an effective public health strategy to cannabis regulation should include addition of cannabis smoke and vapor to existing smokefree laws covering tobacco products to prevent erosion of progress reducing environmental tobacco exposure.³⁵⁸

All 10 states that legalized adult use prior to 2019 have prohibited public use.³⁵⁹ They have also frequently added cannabis to existing smokefree laws.³⁶⁰ However, some states have explicitly authorized on-site consumption exemptions to indoor smoking restrictions³⁶¹ or allowed localities to do so.³⁶² Such exemptions threaten to undermine other smokefree laws if the tobacco industry attempts to leverage them to create additional smoking spaces in an effort to renormalize smoking behavior. Jurisdictions adopting this approach should explicitly prohibit tobacco use in such locations by law and consider other limitations to reduce secondhand cannabis smoke exposure for employees, such as restricting consumption areas to outdoor locations or requiring strict physical separation from employee work areas. However, only completely smokefree environments fully protect nonsmokers.³⁶³

As in existing adult use states, proposed bills (and Illinois’s enacted 2019 legislation) uniformly prohibit public consumption of cannabis, though there are some distinguishing features, as presented in Table 4, below.

A Hawaii bill would apply any restrictions on tobacco products and smoking to non-medical cannabis.³⁶⁴ Multiple New York bills would similarly prohibit cannabis smoking in public and any location where smoking tobacco is prohibited by law.³⁶⁵ A New Mexico bill would prohibit smoking cannabis in public places, but would not include electronic devices creating a vapor in the definition of “smoking.”³⁶⁶ Two New Jersey bills would prohibit smoking cannabis in any location where tobacco smoking is prohibited, as well as any indoor public place even if tobacco smoking is permitted. They would also prohibit cannabis smoking within the campuses and facilities of public and private higher education institutions.³⁶⁷

A Minnesota bill would add not only smoked cannabis, but all lighted and vapor cannabis products to the state’s clean indoor air act.³⁶⁸ Taking advantage of an opportunity to revise this law, the bill would also add electronic nicotine devices (ENDS) to existing indoor smoking prohibitions (e.g., at public schools).³⁶⁹

A Connecticut bill would prohibit all cannabis consumption (including smoking, vaping, and other forms) in all places where tobacco smoking is prohibited and in any public place.³⁷⁰

Illinois’s enacted 2019 legislation prohibits “smoking” cannabis where smoking is prohibited by the state’s clean indoor air law without explicitly including vapor products,³⁷¹ but also more generally prohibits “using” cannabis in any public place,³⁷² which is broadly defined and applies to most non-residential locations.³⁷³ The legislation also specifically prohibits using cannabis “knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient” in the state.³⁷⁴

Several state bills would make exceptions to smokefree laws for on-site consumption areas, but restrictions on such locations vary. Some bills would allow on-site cannabis sales,³⁷⁵ others would either allow or require consumers to bring their own cannabis.³⁷⁶ Some would require consumption areas to be part of a licensed retailer or medical dispensary,³⁷⁷ others would allow or require independent licensure,³⁷⁸ and some would allow on-site consumption only in conjunction with a producer license³⁷⁹ (similar to a tasting room at an alcohol production facility). Some would allow consumers to leave with unused cannabis or cannabis products,³⁸⁰ but may require the product to be repackaged.³⁸¹ Frequently, bills authorizing on-site consumption would not permit alcohol, tobacco, or nicotine sales or consumption at the same location.³⁸² The effects of various restrictions are undetermined, but they are likely to impact the number and location of on-site consumption areas. For example, if on-site sales are prohibited, this would limit profit-making potential and likely result in fewer licensed venues. The number and location of on-site consumption areas, in turn, will likely influence the extent to which they contribute to cannabis use normalization or erosion of smokefree restrictions in an area.

III. Policy Implications

A. Legalization is Dynamic, and States are Poised to Act

Cannabis policy is evolving quickly. Medical legalization spread from a single state in 1996 to 33 states and D.C. in 2018.³⁸³ Recreational legalization was non-existent until 2012 and in 2018 included 10 states and D.C. Given the recent electoral success of legalization campaigns, legalization in additional states is highly likely, though the precise form legalization may take remains up for debate.³⁸⁴

Despite the dramatic pace of change in this policy area over the last several years, there remains the potential for considerable additional change at the state level. As of July 2019, there were 23 states that allow citizens to place an issue on the ballot via initiative (not including legislative referenda).³⁸⁵ Of these, 14 did not have adult use cannabis laws, 5 did not have comprehensive medical legalization laws, and 3 lacked even limited medical legalization for CBD/low-THC products (Table 5).³⁸⁶ The absence of legalization laws in many of these states in combination with recent legal changes in other states and overall public opinion trends creates a policy vacuum on the issue. In the absence of legislative action, ballot initiatives are likely to fill this space.

Table 5:

Public Use Provisions in Proposed Bills

Type	State	Bills
Prohibits All Public Cannabis Consumption	Arizona	S.C. Res. 1022 § 1 (4–404)
	Connecticut	H.B. 5595
	Illinois [enacted]	H.B. 1438 § 10–35(a)(3)(F)
	Minnesota	H.F. 420 §§ 2 (subdiv. 7), 8 (subdiv.2(a)(6)(ii)); S.F. 619 §§ 2 (subdiv. 7), 8 (subdiv. 2(a)(6)(ii))
	Missouri	H.B. 551 § A (195.2153(2))
	New Jersey	A.B. 3819 § 3(c); S.B. 2702 § 4(c)
	New Mexico	S.B. 577 § 23(B)
	West Virginia	H.B. 2331 § 16A-17–3(2)
Prohibits Public Cannabis “Smoking”	Kentucky	S.B. 80 § 4
	New Hampshire	H.B. 481 § 6 (318-F:4)
	New Mexico	H.B. 356 § 31(A)
	New York	A.B. 1617 § 25; A.B. 3506 § 25; S.B. 1527 § 25; S.B. 3040 § 25
	Rhode Island	S.B. 2895 § 1 (21–28.10–8)
	West Virginia	H.B. 2376 § 11–16A-5(a); H.B. 3129 § 5B-8–5(a)
	Connecticut	H.B. 5458 §§ 1(11), 5
	Illinois [enacted]	H.B. 1438 § 55–25(3) (as authorized and regulated by localities)
	Maryland	H.B. 632 § 1, art. XX (1)(B)(3)
Exempts Licensed Consumption Areas	Minnesota	H.F. 465 § 16(subdiv. 1)
	New Jersey	A.B. 4497 §§ 3, 4(c); S.B. 2703 §§ 3, 4(c)
	New Mexico	H.B. 356 § 31(A); S.B. 577 § 4(B)
	New York	S.B. 1509 art. 4, § 74; S.B. 1527 § 31 (art. 11, § 178); S.B. 3040 § 31 (art. 11, § 178);
	Virginia	H.B. 2371 art. 7 § 3.2–4160 (A)(3); H.B. 2373 art. 3 § 3.2–4151
Applies Existing Tobacco Consumption Restrictions	Hawaii	S.B. 686 § 329-B(f)
	Connecticut	S.B. 487 § 21
	Illinois[enacted]	H.B. 1438 § 10–35(a)(4)
	New Jersey	S.B. 2703 § 4(c); A.B. 4497 § 4(c)
	New York	A.B. 1617 § 25; A.B. 3506 § 25; S.B. 1527 § 25; S.B. 3040 § 25
	Vermont	H.B. 196 § 2 (tit. 7, §§ 831(5), 833); H.B. 250 § 2 (tit. 7, § 831(5); 833); S.B. 54 § 2 (tit. 7, §§ 831(5), 833);
Applies Existing Alcohol Consumption Restrictions	New Jersey	A.B. 3581 §§ 3 (“public place”), 4(c); S.B. 2702 §§ 3 (“public place”), 4(c); A.B. 4497 §§ 3 (“public place”), 4(c)

Based on electoral results between 2012 and 2018 and various public opinion polls,³⁹¹ voters are highly supportive of medical legalization and moderately supportive of recreational legalization as general principles.³⁹² Depending on how much faith one has in the electorate to be discerning in evaluating ballot questions, it may be fair to ask whether, at this current high water mark for legalization support, voters will approve any legalization initiative that appears at face value to accomplish these goals. For now, at least, it appears that they will not. For example, Ohio’s 2015 Initiative 3 would have legalized both medical and recreational cannabis. ³⁹³ According to an April 2015 state poll, 84% of Ohio voters supported medical legalization and 52% supported adult use legalization.³⁹⁴ Yet the initiative failed by a wide margin, capturing only 36% of the vote, the lowest of any legalization ballot measure of any type in any state since at least 2004.³⁹⁵ The Ohio measure was unusually constructed, giving oligopolistic control of the proposed cannabis market to a small cadre of interconnected corporate investors who provided nearly all of the initiative’s funding support, which appears to have contributed heavily to its defeat.³⁹⁶

B. Advantages of Legislative Legalization

There are potential public health advantages to legislative legalization, whether medical or recreational.³⁹⁷ First, legislatively-enacted laws are considerably easier to change than voter-enacted laws. With relatively few limits, legislatures are free to later change statutes they have enacted.³⁹⁸ This allows a legislature to adjust course to correct for, among other issues, drafting errors or ambiguities, incorrect assumptions (e.g., tax forecast³⁹⁹), changing market dynamics, improved scientific understanding of the health effects of cannabis consumption, and the observed impacts of different policy models in other jurisdictions.

In contrast, several states’ laws afford voter-enacted laws substantial protection from legislative changes. For example, unless specifically authorized in the initiative language, California law prohibits the legislature from amending initiatives without returning to the people for a vote.⁴⁰⁰ Arizona law prohibits the state legislature from amending laws passed by initiative or referendum with less than a three-fourths supermajority, and even with such a majority, the legislature may only make amendments that further the purpose of the law. To fundamentally alter or repeal the law, the legislature must submit the change to the voters via referendum.⁴⁰¹ Several other states require legislative supermajorities to amend citizen initiatives or require a specified period of time to pass before the legislature can amend.⁴⁰²

State efforts to regulate around voter-enacted marijuana initiatives may also face substantial legal challenge. For example, a Colorado regulation that would have required marijuana-focused publications to be kept behind store counters in order to reduce access by minors was struck down by a federal court after even the responsible regulatory agency and state attorney general’s office conceded its unconstitutionality.⁴⁰³ However, the construction of some state initiatives, such as those in Washington and Colorado, has allowed legislatures to more easily make changes.⁴⁰⁴

The difficulties legislatures face in altering voter initiatives exist by design because initiatives are a vehicle for bypassing or overruling an unresponsive or resistant legislature.⁴⁰⁵ However, the inflexibility of initiatives can have broad and sometimes unintended consequences, especially when the initiative is exceedingly specific.⁴⁰⁶ Rigid legal frameworks imposed by initiative can restrict options for correcting errors, mitigating undesirable results, and reacting to changing circumstances,⁴⁰⁷ precisely the type of nuanced, careful, and responsive policymaking tools frequently cited as necessary for cannabis policy in light of limited and fast-changing scientific evidence.⁴⁰⁸

Second, legislative legalization allows public health experts and advocates to play a more direct role in policy development (if they chose to participate). Voter initiatives are entirely the creations of the advocates who draft them. While they may adopt a variety of perspectives, they have neither the obligations to the public nor the resources of state legislatures. Legislatures have the authority, ability, and responsibility to involve a variety of perspectives in their decision-making. Among other powers, legislatures can actively involve public health experts through, among other avenues, expert testimony and grant-making to generate analysis.

Third, legislative legalization better leverages the benefits of the “laboratories of democracy.” A small number of advocacy groups are responsible for most state legalization initiatives to date. As a result, states’ approaches have been highly similar. Whether via an enduring state-oriented approach⁴⁰⁹ or eventual federal legalization, greater variety in state policy will help demonstrate the effects of various policy decisions and aid future decision-making. The findings discussed in Part II illustrate that not only are public health principles gaining some traction in legislative legalization proposals that has been largely absent in ballot initiatives, but also that state legislatures will address problems in different ways, ultimately providing critical evidence to aid development of future best practice recommendations.

C. The Window for State Legislative Action is Open, But Limited

Public health advocates have the opportunity to appropriate the momentum of the legalization movement and the underlying shift in public opinion to effect the positive impacts of legalization (e.g., market regulation) while potentially avoiding or at least blunting the negative effects of unfettered cannabis commercialization. Rather than presenting voters or legislators the binary choice between prohibition and laissez-faire legalization, public health-oriented legalization provides a more nuanced and beneficial middle path grounded in historical lessons and hard-learned best practices.

Some of the public health approaches outlined may seem unachievable in the current policy environment. However, public health policies often progress slowly but ultimately yield largescale changes. Tobacco control is a leading example. In 1965, almost 42% of U.S. adults smoked cigarettes; it is now less than 16%.⁴¹⁰ In the 1970s only the boldest advocates for nonsmokers’ rights sought even to require non-smoking sections in restaurants and other public places, and their early efforts received limited support from health organizations.⁴¹¹ Tobacco companies used cartoon characters in their marketing until the practice was proscribed by the 1998 Master Settlement Agreement.⁴¹² U.S. law did not prohibit smoking on airplanes until 1990 (and until 2000 this prohibition included only domestic flights),⁴¹³ after over 20 years of advocacy to overcome opposition from the tobacco industry and its allies.⁴¹⁴ The history of tobacco control illustrates that the political and legal status quo does not dictate the potential for future public health policy success (and also that the road to such success is long and perilous, especially against powerful and entrenched industries).

Ballot initiatives are born of frustration with perceived legislative inaction, obstinacy, or misalignment of interests. In the case of cannabis, the myriad failures and extensive collateral damage of the War on Drugs makes such frustration understandable. Still, the speedy adoption of legalization via initiative has outpaced scientific understanding of cannabis and its effects on health, leading to a difficult policy crossroads with no ideal resolution. The best available path forward is the one that most readily allows for course correction and minimizes unintended negative effects. A public health approach to cannabis legalization, adopted legislatively, is such a path for states unless and until a change in federal law, but the window for doing so will not remain open indefinitely.

Policymakers’ reticence to adopt comprehensive cannabis legalization may be prudent in light of the current state of cannabis science. However, changing public opinion has forced the issue. In states with a ballot initiative process, legalization advocates will bring their case directly to voters, and they are very likely to succeed. In states where this process is not available, there is a separate but related risk. As state cannabis markets around the country (and in other countries) mature and larger corporate entities enter⁴¹⁵ or emerge,⁴¹⁶ the ability of the nascent legal cannabis industry to influence lawmakers will grow. The borders of legalizing jurisdictions will not contain this influence. If the cannabis industry gains sway in state legislatures (or Congress), policy will likely favor industry interests at the expense of public health. To protect public health, the best approach is to enshrine a public health approach in legalization from the outset, rather than to fight these battles defensively.

D. The Stakes for Public Health are High

The cannabis industry is not, at present, comparable to either the tobacco or alcohol industries. However, both tobacco and alcohol companies, among others, have begun to obtain or at least explore entry into the cannabis market.⁴¹⁷ These efforts have, to date, been fairly small in relation to the size and positioning of the industries as a whole, likely due to continuing illegality in most countries, including the U.S. at the federal level, and are likely to change as legalization progresses.

Many public health best practices developed post hoc to address the malfeasance of powerful global industries (e.g., tobacco) that engaged in copious and well-documented bad behavior. As of now, that description does not apply to the cannabis industry. One may argue that policies designed to curtail the past abuses of one industry and prevent repetition are not necessarily applicable to an industry that has yet to engage in such abuses. However, a key lesson from the history of tobacco and alcohol control is that once industries achieve prominence and power, controlling their behavior becomes exponentially more difficult. In regulating cannabis, the opportunity exists to structure legal frameworks to create guardrails that prevent or minimalize damaging industry behavior, rather than ameliorate its effects after the fact.

The state of evidence regarding the health harms of cannabis is far from ideal. While cannabis shares some effects with alcohol and some routes of administration with tobacco, the three are separate and distinct substances with unique characteristics. For example, tobacco, in all forms, is known to be carcinogenic. Cannabis smoke is thought to have similar effects because the two forms of smoke are nearly identical, save for the presence or absence of nicotine and cannabinoids.⁴¹⁸ However, while existing evidence is strongly suggestive, carcinogenicity of cannabis has yet to be conclusively demonstrated,⁴¹⁹ and non-smoked forms of cannabis (e.g., edibles) may not share this health risk. Yet carcinogenicity is not the only harm tobacco smoke poses. Smoking causes myriad other negative health impacts, particularly on the cardiovascular and respiratory systems, and there is evidence that cannabis smoke has a similar risk profile,⁴²⁰ which is to be expected given their similarity of composition. Several other potential negative health effects associated with cannabis use (e.g., motor vehicle accidents, pediatric overdose injuries, impaired cognition, development of schizophrenia or other psychoses, abuse of other substances)⁴²¹ are likely unrelated to mode of use.

The comparative absence of evidence on cannabis’s potential health harms as compared to those of tobacco and alcohol may simply be the product of the overall dearth of research on cannabis, largely due to legal restrictions in place for the past several decades. The most comprehensive summary of the possible health effects of cannabis, both positive and negative, comes from the National Academies of Sciences, Engineering & Medicine.⁴²² While that report does draw important substantive conclusions,⁴²³ its major recommendations all address the need for additional research.⁴²⁴ Additionally, the report notes that all cannabis provided to investigators in the U.S. comes from the National Institutes on Drug Abuse, which sources cannabis solely from a single site at the University of Mississippi and does not commonly provide forms of cannabis products other than standard dried flower (i.e., no edibles, concentrates, etc.).⁴²⁵ As a result, the absence of clear evidence of health harms from non-smoked cannabis products may be due to the absence of research, rather than the absence of effects in reality. Cannabis available for research also often fails to reflect the strains, potency, or other characteristics of products available on the market (licit or illicit),⁴²⁶ again indicating that absence of evidence for any particular effect or association should not be understood to be evidence of absence. The impacts of cannabis use will become clearer with time and additional research, but responsible regulation of cannabis cannot wait.

Conclusion

Despite the long history of human cannabis use, evidence of potential health harms from the substance is still developing, though there is already more than enough to be cause for concern. Nevertheless, the failures of the War on Drugs and the potential societal benefits of legalization have contributed to strong policy momentum in favor of adult use cannabis legalization. To date, legalization has primarily arisen from ballot initiatives, but legislatures are better situated to craft legalization frameworks that protect public health, and many state legislative proposals to legalize cannabis contain public health best practice elements absent from existing adult use frameworks.

Absent legislative action, legalization advocates will continue to use ballot initiatives to achieve their policy goals, and the nascent legal cannabis industry will continue to cultivate legislative influence. Once industry-friendly policies become entrenched in law, they will be difficult to change. Legislatures should proactively adopt legalization measures to preempt weaker advocate-driven initiatives and future industry-influenced legislation. Legislative legalization may not be ideal based on the state of existing evidence, but it is the best available path forward in a situation where the status quo is demonstrably harmful and the other path potentially allows the repetition of past mistakes in tobacco and alcohol regulation. Legalization carries both opportunities and risks for public health, but inaction is not a viable option.

Table 6:

Cannabis Legalization in States with Initiative Process³⁸⁷

State	Limited Medical	Medical	Recreational
Alaska	--	Yes (1998)	Yes (2014)
Arizona	--	Yes (2010)	No388
Arkansas	--	Yes (2016)	No
California	--	Yes (1996)	Yes (2016)
Colorado	--	Yes (2000)	Yes (2012)
Florida	Yes (2014)	Yes (2016)	No
Idaho	No389	No	No
Maine	--	Yes (1999)	Yes (2016)
Massachusetts	--	Yes (2012)	Yes (2016)
Michigan	--	Yes (2008)	Yes (2018)
Mississippi	Yes (2014)	No	No
Missouri	Yes (2014)	Yes (2018)	No
Montana	--	Yes (2004)	No
Nebraska	No	No	No
Nevada	--	Yes (2000)	Yes (2016)
North Dakota	--	Yes (2016)	No390
Ohio	--	Yes (2016)	No
Oklahoma	--	Yes (2018)	No
Oregon	--	Yes (1998)	Yes (2014)
South Dakota	No	No	No
Utah	Yes (2014)	Yes (2018)	No
Washington	--	Yes (1998)	Yes (2012)
Wyoming	Yes (2015)	No	No
States Without:	3/23	5/23	13/23

APPENDIX

We developed a set of active proposed legislation using WestLaw in February 2019 with the following search string: advanced: (marijuana marihuana cannabis) /50 (“adult use” “personal use” recreational legalize legalization). We limited results to past 12 months and excluded jurisdictions with existing adult use laws (Alaska, California, Colorado, District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, and Washington).

This search yielded 234 results. We then rejected duplicates and those that did not address any form of legalization or only modified an existing program based on review of available summary or abstract, yielding 93 results. Application of inclusion criteria yielded a final set of 52 bills in 18 states for full review, as presented in Table A1, below. In July 2019, we revised the analysis to include Illinois’s successful H.B. 1438 as enacted. We did not include revised or amended versions of other (unsuccessful) bills in this update.

Table A1:

List of Reviewed Legislation

State	Year	Bill #
Arizona	2019	S.C. Res. 1022
Connecticut	2018	H.B. 5458
Connecticut	2019	H.B. 5595
Connecticut	2019	H.B. 6863
Connecticut	2018	S.B. 487
Connecticut	2019	S.B. 496
Connecticut	2019	S.B. 744
Hawaii	2019	H.B. 1515
Hawaii	2019	H.B. 1581
Hawaii	2019	H.B. 291
Hawaii	2019	S.B. 442
Hawaii	2019	H.B. 708
Hawaii	2019	S.B. 686
Illinois	2019	H.B. 2477
Illinois	2019	H.B. 902
Illinois	2019	H.B. 1438 [enacted]
Indiana	2019	H.B. 1685
Kentucky	2019	S.B. 80
Maryland	2019	H.B. 632
Minnesota	2019	H.F. 265
Minnesota	2019	H.F. 420
Minnesota	2017	H.F. 4541
Minnesota	2019	H.F. 465
Minnesota	2019	S.F. 619
Mississippi	2019	S.B. 2349
Missouri	2019	H.B. 157
Missouri	2019	H.B 551
New Hampshire	2019	H.B. 481
New Hampshire	2019	H.B. 722
New Jersey	2018	A.B. 3581
New Jersey	2018	A.B. 3819
New Jersey	2018	A.B. 4497
New Jersey	2018	S.B. 2702
New Jersey	2018	S.B. 2703
New Mexico	2019	H.B. 356
New Mexico	2019	S.B. 577
New York	2019	A.B. 1617
New York	2019	A.B. 2009
New York	2017	A.B. 3506
New York	2019	S.B. 1509
New York	2019	S.B. 1527
New York	2017	S.B. 3040
Rhode Island	2017	S.B. 2895
Vermont	2019	H.B. 196
Vermont	2019	H.B. 250
Vermont	2019	S.B. 54
Virginia	2018	H.B. 2371
Virginia	2018	H.B. 2373
West Virginia	2019	H.B. 2331
West Virginia	2019	H.B. 2376
West Virginia	2019	H.B. 3108
West Virginia	2019	H.B. 3129