During the same week last month when a congressional committee passed a groundbreaking bill aimed at repealing the federal ban on marijuana, another congressional committee approved a new federal ban on flavored e-cigarettes. The House Judiciary Committee's vote on the Marijuana Opportunity Reinvestment and Expungement Act showed how far politicians have moved in their thinking about drugs during the last decade. The House Energy and Commerce Committee's vote on the Reversing the Youth Tobacco Epidemic Act showed how far they have to go.
The shift from demonizing cannabis to demonizing nicotine is not a good sign for anyone who hoped that recognizing the folly of marijuana prohibition would lead to a broader understanding of the costs inflicted by attempts to forcibly prevent people from consuming psychoactive substances. By and large, neither legislators nor the voters they represent think about this subject in a principled way. If they did, the repeal of National Alcohol Prohibition in 1933 would not have been followed four years later by the Marihuana Tax Act, a federal ban disguised as a revenue measure. When it comes to ending the war on drugs, the same arguments have to be deployed anew for every intoxicant.
Still, there's no denying the dramatic progress we've seen since 2010, when no state allowed recreational use of marijuana (with the partial exception of Alaska, where the state constitution had been interpreted as protecting private possession of small amounts). Today recreational use is legal in 11 states, 10 of which also allow commercial production and distribution, while medical use is legal in 33 states, up from 13 at the beginning of the decade. During the same period, according to Gallup, public support for general legalization has risen from 44 percent to 66 percent.
Marijuana remains illegal for any purpose under the Controlled Substances Act, which creates all sorts of problems for the cannabis industry. But in recent years (and under two administrations), the feds generally have not targeted state-licensed marijuana suppliers for prosecution or forfeiture. Nearly every Democratic presidential contender supports legalization (with the notable exceptions of Joe Biden and Michael Bloomberg), and even Donald Trump has repeatedly said states should be free to abandon pot prohibition.
One other sign of the times: Former House Speaker John Boehner, a Republican who not long ago described himself as "unalterably opposed" to marijuana legalization, is now a cannabis industry lobbyist. Boehner saw the light sooner than several prominent Democrats, including Senate Minority Leader Chuck Schumer (N.Y.), New York Gov. Andrew Cuomo, and Sen. Kamala Harris (Calif.).
The movement away from total prohibition has not been limited to marijuana. The Food and Drug Administration (FDA), which last year approved the first cannabis-derived medicine to be recognized by the federal government (an oral cannabidiol solution used to treat epilepsy), in 2017 recognized MDMA as a "breakthrough therapy" for post-traumatic stress disorder. The Multidisciplinary Association for Psychedelic Studies, which sponsored the research that the FDA found compelling, says MDMA could be available by prescription as soon as 2021, more than three decades after the Drug Enforcement Administration banned it.
Psilocybin, the main psychoactive ingredient in "magic mushrooms," may join MDMA as a prescription drug. Last year, based on preliminary research, the FDA identified psilocybin as a breakthrough therapy for depression. A 2017 YouGov survey found that 53 percent of Americans support clinical trials involving "illegal psychedelic substances" such as "mushrooms, ketamine, [and] MDMA," while 63 percent would try a psychedelic as a treatment for "a medical condition" if it were "proven to be safe and effective."
Local activists in various states want to go further by decriminalizing nonmedical use of psilocybin. This year Denver voters approved a ballot initiative that instructed police to stop arresting adults 21 or older for possessing psilocybin. While the practical consequences of that initiative will be modest, it is symbolically and politically important as the first successful measure of its kind. Activists in Oregon and California hope to pass ballot initiatives that would decriminalize psilocybin statewide.
When it comes to opioids, by contrast, the pendulum has been swinging toward more government control. Responding to a surge in opioid-related deaths that began in the early 2000s, the government imposed new restrictions on the use of narcotic analgesics. Since 2010, those policies have succeeded in driving down pain pill prescriptions, which had increased dramatically since the late 1990s. Yet the upward trend in opioid-related deaths not only continued but accelerated as nonmedical users switched to heroin and illicitly produced fentanyl, which are much more dangerous because their potency is unpredictable. Today those black-market drugs account for the vast majority of fatalities involving opioids. Meanwhile, the indiscriminate campaign against prescription analgesics has deprived many bona fide patients of the medication they need to control their pain.
Like the crackdown on pain pills, the government's reaction to the recent surge in adolescent vaping promises to increase drug-related harm. The popularity of e-cigarettes, which first hit the U.S. market in 2006, took off during the last decade. Millions of Americans have switched from smoking to vaping, a much less hazardous source of nicotine—a development that Scott Gottlieb, former head of the Food and Drug Administration (FDA), hailed as "a tremendous public health opportunity." But legal responses to rising e-cigarette use by teenagers, including state bans on flavored e-liquids and similar restrictions proposed by the FDA, undermine the harm-reducing potential of these products by eliminating the varieties that former smokers overwhelmingly favor. The result is likely to be more tobacco-related disease and death as former smokers return to their old habits and current smokers are deterred from switching.
Thanks to unfounded warnings that e-cigarettes are hooking "a whole generation of young people," members of Congress who want to eliminate the federal ban on marijuana, which was originally imposed in the name of protecting America's youth, think that same goal justifies a new federal ban that would make it impossible for adults to legally obtain the nicotine products they demonstrably prefer. The paradox is all the more puzzling because those legislators recognize that the recent outbreak of vaping-related lung injuries, which are associated mainly with illegal cannabis extracts, is not a sound argument for pot prohibition. Since the real hazard seems to be dangerous additives or contaminants in black-market products of unknown provenance and composition, prohibition only increases the risks to consumers.
Pennsylvania Gov. Tom Wolf therefore argues that the lung disease outbreak reinforces the case for marijuana legalization. "The real problem with vaping is the illicit substances that are being introduced into the vaping," he told a reporter in September. "Bring it out in the open. Let's deal with it."
Meanwhile, Pennsylvania legislators are considering a ban on flavored e-cigarettes, and the congressman who introduced the proposed federal ban nonsensically cites lung injuries involving black-market THC vapes as a reason to ban legal e-cigarettes that deliver nicotine. Drug panics, it seems, never fade away; they just shift to new targets.
Start your day with Reason. Get a daily brief of the most important stories and trends every weekday morning when you subscribe to Reason Roundup.