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How marijuana became legal
Medical marijuana is giving activists a chance to show how a legitimized pot business can work. Is the end of prohibition upon us?
Irv Rosenfeld is one of four U.S. citizens who get their medical marijuana from the federal government.
Stephen DeAngelo founded Harborside to show that a marijuana dispensary could make a positive contribution to a community.
(Fortune Magazine) -- When Irvin Rosenfeld, 56, picks me up at the Fort Lauderdale airport, his SUV reeks of marijuana. The vice president for sales at a local brokerage firm, Rosenfeld has been smoking 10 to 12 marijuana cigarettes a day for 38 years, he says.
That's probably unusual in itself, but what makes Rosenfeld exceptional is that for the past 27 years, he has been copping his weed directly from the United States government.
Every 25 days Rosenfeld goes to a pharmacy and picks up a tin of 300 federally grown and rolled cigarettes that have been sent there for him by the National Institute of Drug Abuse (NIDA), acting with approval from the U.S. Food and Drug Administration.
Rosenfeld smokes the marijuana to relieve chronic pain and muscle spasms caused by a rare bone disease. When he was 10, doctors discovered that his skeleton was riddled with more than 200 tumors, due to a condition known as multiple congenital cartilaginous exostosis. Despite seven operations, he still lives with scores of tumors in his bones.
Rosenfeld is one of four people in the United States whom the federal government supplies with medical marijuana. Each is a living anomaly because, officially, the U.S. Drug Enforcement Administration, NIDA, and the FDA all take the position that marijuana has "no currently accepted medical use."
That's the only way federal law can continue to classify marijuana, like heroin, as a "Schedule I controlled substance," forbidden from being prescribed by doctors. (Numerous dangerous, psychoactive, and addictive opium derivatives, by contrast, are more leniently classified as Schedule II drugs, allowing prescription use.)
Over the years the government's position has become progressively more embattled, if not untenable.
Thirteen states now have laws that let residents use marijuana medicinally, typically to alleviate chronic pain (particularly nerve pain caused by diabetes, AIDS, and hepatitis); manage movement disorders and muscle spasticity (especially for multiple sclerosis patients); as an anti-nausea and anti-vomiting agent (for those, say, undergoing chemotherapy); and as an appetite stimulant (yes, as in "the munchies") for those with wasting diseases like AIDS and cancer.
Another 15 states are weighing legislation or ballot initiatives that could turn them into medical marijuana states by next year.
The acceptance of medical marijuana has implications that extend far beyond helping those suffering from life-threatening diseases. It is one of several factors -- including demographic changes, the financial crisis, and the widely perceived failure of the war on drugs -- reopening the country's 40-year-old on-again, off-again shouting match over whether marijuana should be legalized.
This article is not another polemic about why it should or shouldn't be. Today, in any case, the pertinent question is whether it already has been -- at least on a local-option basis. We're referring to a cultural phenomenon that has been evolving for the past 15 years, topped off by a crucial policy reversal that was quietly instituted by President Barack Obama in February.
0:00 /2:41Hookah business smokin'
First, some necessary background. Under President George W. Bush (and under President Bill Clinton before him, for that matter), the U.S. Justice Department treated state medical marijuana laws as nullities. Such laws were contradicted and therefore preempted by federal drug laws, the Justice Department reasoned, and the U.S. Supreme Court upheld that position in 2005.
Accordingly, the federal government has periodically raided and prosecuted defendants who at least claimed to be complying with state medical marijuana laws, and when it did, defendants were forbidden from telling juries about the existence of those laws.
In late February, President Obama signaled a new approach. His attorney general, Eric Holder, confirmed at a press conference that he would no longer subject individuals who were complying with state medical marijuana laws to federal drug raids and prosecutions.
This understated act -- a simple pledge not to act, really -- could have enormous consequences. It potentially leads to exactly the same endpoint as the Twenty-First Amendment, which repealed the federal prohibition on alcoholic beverage sales.
Here's how. When states make a legal loophole allowing medical use of marijuana, they must grapple with the messy question of what precisely constitutes medical use. After all, doctors regularly prescribe powerful drugs like Valium, Viagra, Prozac, and -- give us a break -- Botox to patients who are hardly at death's door.
If a state doesn't tightly limit what "medical use" means, the camel can get its nose under the tent.
That's what happened in California. Like most medical marijuana states, California permits doctors to "recommend" marijuana use for patients who suffer from specific serious diseases. (Drafters of the law avoided the word "prescribe" in an attempt to sidestep conflict with federal law.)
California's law then adds a catchall provision that lets doctors also approve marijuana use for "any other illness for which marijuana provides relief." In practice, doctors -- largely protected from second-guessing by confidentiality privileges -- have been free to make the final call as to which conditions those might be.
This is, after all, the norm vis-à-vis medicines. Once a pharmaceutical has been FDA-approved for one use, doctors can lawfully prescribe it for other, so-called off-label purposes, even though the drug has not yet been certified as safe or effective for them.
Accordingly, California doctors are authorizing patients to take marijuana to relieve such ailments as anxiety, headache, premenstrual syndrome, and trouble sleeping. "You could get it for writer's block," comments Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws.
Some California doctors voluntarily report the breakdown of patient medical conditions for which they have approved marijuana use in the Alameda, Calif., medical newsletter O'Shaughnessy's.
They commonly report that more than a quarter of their marijuana authorizations have been prompted by patients suffering from conditions like "anxiety" or "insomnia." (The most common complaint is "chronic pain.")
As a result, in most of California's coastal metropolitan areas, marijuana is effectively legal today. Any resident older than 18 who gets a note from a doctor can lawfully buy the stuff, and doctors seemingly eager to write such notes, typically in exchange for a $200 consultation fee, advertise in newspapers and on websites.
There are an estimated 300,000 to 400,000 medical marijuana patients in the state now, and the figure is rapidly growing.
More astonishingly, there are about 700 medical marijuana dispensaries now operating in California openly distributing the drug.
These dispensaries -- called "compassionate-care clinics" by the solemn and "pot shops" by the skeptical -- are decidedly outpatient facilities, with not a few patients arriving on bicycles, roller skates, or skateboards. (They often get discounts for doing so, because it's greener than using a fossil-fuel-powered car.)
The dispensaries sell marijuana and its concentrated resin forms, hashish and kif, sometimes alongside a range of enticing, non-inhaled alternatives, including marijuana-imbued brownies, cookies, gelati, honeys, butters, cooking oils ("Not So Virgin" olive oil), bottled cold drinks ("enhanced" lemonade is the most popular), capsules, lozenges, spray-under-the-tongue tinctures, and even topically applied salves.
In Los Angeles a high-end three-store chain called the Farmacy employs a pastry chef to oversee production of all its baked goods. Most dispensaries also sell potted plants and seeds for patients who are either thrifty or entrepreneurial.
All these establishments are engaged in what federal penal statutes still humorlessly define as narcotics trafficking. The dispensaries' affiliated marijuana farms and plant nurseries are sometimes of sufficient size to subject operators to mandatory-minimum five-year federal prison terms.
And this, mind you, is a situation that evolved almost entirely during the Bush administration, when the U.S. Drug Enforcement Administration was still routinely threatening dispensary landlords with forfeiture of their premises, periodically raiding clinics and seizing inventories, and criminally prosecuting the most brazenly abusive operators.
Luke Scarmazzo, who aired a rap video on YouTube two years ago boasting of all the money and great sex he was getting from running the California Healthcare Collective in Modesto, Calif. -- "Fuck the feds!" was one ill-advised lyric -- was sentenced in federal court this past December to almost 22 years of imprisonment on a continuing criminal enterprise conviction. (He has appealed.)
While the situation in California is unusual, it's becoming less so. There are now 15 dispensaries in Colorado, according to weedmaps.com, one of many online marijuana dispensary and physician ("pot-doc") locator services. In Oregon nearly one in four active physicians has authorized at least one of his patients to grow marijuana for medical use.
New Mexico hopes to have the nation's first state-licensed medical marijuana farm and distributorship up and running by the time this article is published. New Mexico's law was enacted two years ago, but state officials hadn't dared implement it until Attorney General Holder blew the all clear in February.
This is the sense in which President Obama's understated pledge not to interfere with state medical marijuana laws potentially achieves for that intoxicant what the Twenty-First Amendment accomplished for beer, wine, and booze during the Great Depression.
Repeal, remember, simply returned to the states the right to decide whether to permit alcoholic beverage sales, and, if so, when and how. If a state permitted sales, it could also enforce minimum- age requirements, limit store hours, set zoning restrictions, and levy taxes. If it prohibited sales, it could bask in righteousness but exercise no control over the traffic that would occur anyway.
Over time nearly every state fell in line behind the tax-and-regulate model. (During Prohibition, federal law did contain an exception allowing alcoholic beverage sales for medical purposes. Nevertheless the case for medical booze was never compelling, and after repeal no state chose to condition the legality of alcohol sales upon a showing of medical need.)
"I think we're going to have exactly that kind of local option with marijuana [that we now have with alcohol]," says Keith Stroup, 65, NORML's founder, two-time past executive director, and current legal counsel. "Once that happens it will be like gambling."
Initially only Nevada permitted gambling, and then it was just Nevada and New Jersey. "But over a period of time," Stroup says, "the morality part of the issue kind of dissipated, and there were more and more needs for new revenue, and today almost every state in the country allows legalized gambling."
Marijuana activists thought they were close to legalization once before. From 1973 to 1978 activists won decriminalization in 11 states. ("Decriminalization" is a grab-bag term but usually refers to schemes under which first-time possession of small quantities of marijuana becomes a noncriminal violation, akin to a parking ticket. Decriminalization falls short of legalization, in that sale and distribution remain serious felonies.)
In 1977, President Jimmy Carter endorsed a federal decriminalization bill. But the bill went nowhere, and soon the movement was all but obliterated by the return swing of the cultural pendulum, now known as the Reagan Revolution. There would be no new state or federal marijuana reforms for the next 16 years.
"Here's what's different now," asserts Ethan Nadelmann, the head of the Drug Policy Alliance, which favors marijuana legalization on a tax-and-regulate model. "First, in the late 1970s no more than 30% of the American public supported making marijuana legal. Now it's breaking 40%."
That jump reflects an important demographic change, Nadelmann notes. "Back then there was a whole older generation of Americans who didn't know the difference between marijuana and heroin," he says. "Now that generation is mostly gone. The people in power are baby boomers, a majority of whom actually smoked marijuana."
The past three Presidents have all more or less admitted trying the drug, Nadelmann continues, and the current one, when asked if he inhaled, famously retorted, "I thought that was the point."
Beyond the demographic change, there is a perception that after 40 years of blood, sweat, and tears, the war on drugs -- formally declared by President Richard Nixon in 1969, a month before the Woodstock festival -- has failed to reduce the availability of illegal drugs, has enriched and empowered organized-crime gangs, and has subjected millions of people to arrest who pose little threat to anyone but themselves.
On top of that, we're now mired in the worst economic environment since the Great Depression, which makes the prospect of collecting taxes on marijuana sales as alluring to contemporary politicians as beer, wine, and liquor taxes looked to President Franklin Delano Roosevelt and his party when they took office in 1933, the year Prohibition was repealed.
Assuming a national consumer market for marijuana of about $13 billion annually, Harvard economist Jeffrey Miron has estimated that legalization could be expected to bring state and federal governments about $7 billion annually in additional tax revenue, while saving them $13.5 billion in prohibition-related law enforcement costs.
In California, where the fiscal crisis is so grave that the state has had to issue vendors more than $1 billion in IOUs, a Field Poll published in April showed that 56% of the state's population favored legalizing marijuana, prompting Gov. Arnold Schwarzenegger to call for an "open debate" on the question. A legalization bill has been introduced in the state legislature, and the state board of equalization has estimated that if passed, it would bring in $1.4 billion in new revenue, a seemingly conservative estimate.
It's even possible that legalization would reduce national health-care costs, by easing demand for costly pharmaceuticals.
In the most recent issue of O'Shaughnessy's, one doctor reported that his cannabis patients had either stopped or cut back their use of "analgesics of all kinds [including] Tylenol, aspirin, and opioids; psychotherapeutic agents including anti-anxiety medications, anti-depressants, anti-panic, obsessive-compulsive, anti-psychotic, and bipolar agents; gastrointestiminal agents including anti-spasmodics and anti-inflammatory medications; migraine preparations; anticonvulsants; appetite stimulants; immuno-modulators and immunosuppressives; muscle relaxants; multiple sclerosis management medications; ophthalmic preparations; sedative and hypnotic agents; and Tourette's syndrome agents."
"Medical marijuana is God's little joke on the [marijuana] prohibitionists," says Richard Cowan, 69, a longtime legalization activist who claims he's smoked almost every day since 1967. "There is clearly a medical need, and it ranges from minor to life-saving.... From my perspective, the dividing line between medical and nonmedical should not be decided by the police."
Medical marijuana is clearly the crowning factor making things different this time. Not only is it changing perceptions of the drug, but it has also given legalization advocates in California a first-ever opportunity to devise and showcase a business prototype.
They've been afforded the chance to show a skeptical public that a safe, seemly, and responsible system for distributing marijuana is possible. If they succeed, they'll convince the fence sitters and lead the way to a nationwide metamorphosis.
If they fail, the backlash will be savage. If communities cannot adequately regulate the dispensaries, they'll descend into unsightly, youth-seducing, crime-ridden playgrounds for gang-bangers, and this flirtation with legalization will conclude the way the last one did: with a swift and merciless swing of the pendulum.
Pot's medical history
Marijuana, whose botanical name is cannabis, has been used medicinally -- and as an intoxicant, of course -- for thousands of years in Eastern cultures. It is believed to have been introduced to Western medicine in the early 19th century by a British doctor, W.B. O'Shaughnessy, who learned about it while stationed in India (and for whom the medical cannabis newsletter is named).
Several well-known pharmaceutical companies, including Eli Lilly (LLY, Fortune 500), sold cannabis in powdered or tincture forms in the early 20th century as a painkiller, antispasmodic, sedative, and "exhilarant." (For this article Fortune asked Eli Lilly for historical details on its cannabis sales, but a spokeswoman responded, "Due to competing priorities, we ... are unable to facilitate your query.")
Though cannabis remained listed in the U.S. Pharmacopeia -- a standard desk reference for drugs -- until 1942, its use in Western medicine began declining in the late 1800s, according to a history of cannabis written by Harvard psychiatrist Lester Grinspoon titled "Marijuana: The Forbidden Medicine."
The decline, Grinspoon writes, was due in part to the rise of more stable and effective pharmaceuticals -- though many of them later proved to have grave potential side effects -- and because modern hypodermic syringes could deliver faster pain relief using opiates. (Opiates were soluble; cannabis wasn't.)
Then, in the early 1900s, states began outlawing cannabis, which had become associated in legislators' minds with violent crime and psychosis. The drug was then being used in the U.S. mainly by Mexican migrant workers in the West and African Americans in the South, so apprehensions about it may have been intertwined with racial and ethnic fears. In 1937 the federal government, over the objections of the American Medical Association, effectively outlawed cannabis.
Modern-day medical assessments of marijuana's properties have not corroborated the outsize dangers that lawmakers had attributed to the plant. While it is a "powerful drug," concluded an Institute of Medicine report conducted in 1997 at the behest of the White House Office of National Drug Control Policy, its "adverse effects ... are within the range of effects tolerated for other medications."
Yes, someone who is high on marijuana shouldn't drive -- his motor skills and mental powers are impaired -- but that's true of alcohol and many prescription drugs too.
The long-term risks to chronic users appear to center mainly on the generic dangers of smoking (respiratory disease and possibly lung cancer) and upon the "mild and short-lived" withdrawal symptoms that a minority of marijuana users experience, according to the IOM experts. They considered marijuana less addictive than tobacco, codeine, or Valium.
Still, many doctors are squeamish about recommending marijuana to patients -- putting aside issues of legal liability. To begin with, most pharmaceuticals consist of a single, purified chemical compound. Such drugs are susceptible to double-blind, placebo-controlled testing, and once they are approved, doctors can prescribe known dosages.
Marijuana, in contrast, consists of the dried, ground-up flowers of a highly variable plant. It is made up of at least 400 compounds, including more than 60 that are unique to cannabis, known as cannabinoids, several of which are believed to have therapeutic effects. The proportions of these compounds vary greatly from plant to plant. A plant may attract harmful molds.
Lighting a match to the mix then introduces a whole new set of variables. Finally, smoking -- even putting aside its health risks -- is an idiosyncratic delivery system. Everyone smokes differently, so one never knows how much of which compounds the patient is receiving. These factors all make marijuana hard for researchers to test meaningfully and hard for doctors to prescribe confidently.
Accordingly, even those doctors who recognize the therapeutic powers of marijuana often prefer the notion of looking for one or two key active ingredients in it, isolating them, and then devising a delivery system that would not involve smoking.
And that's been done. In 1986 the FDA approved a synthetic version of what has long been recognized to be the main psychoactive ingredient of marijuana -- delta-9-tetrahydrocannabinol, or THC. After rigorous testing, the FDA found THC to be safe and effective for the treatment of nausea, vomiting, and wasting diseases. This lawful, Schedule II drug, trade-named Marinol, is taken orally, by capsule.
The trouble is, for many patients Marinol turns out to be inferior to good old-fashioned pot. Smoked marijuana is much faster acting and, as a consequence, easier for patients to control in terms of dosage. The patient inhales as much as he needs and then stops. In contrast, with a THC pill the patient can easily ingest more than he can handle.
"Oral THC is slow in onset of action but produces more pronounced, and often unfavorable, psychoactive effects that last much longer than those experienced with smoking," according to a 2008 report published by the American College of Physicians. (Incidentally, the FDA-approved warnings for Marinol -- pure THC -- do not flatly forbid patients from driving under its influence. Rather, they simply caution patients not to do so "until it is established that they are able to tolerate the drug and to perform such tasks safely.")
Still, despite the disappointing performance of oral THC, many doctors want to continue exploring faster-acting THC delivery systems, including a skin patch or a suppository.
Meanwhile we're still awaiting hard proof that smoking marijuana can actually cause lung cancer. That evidence has proved surprisingly elusive, maybe in part because typical marijuana users smoke so much less than typical tobacco smokers.
In any case, marijuana users are increasingly turning to a means of inhalation that does not involve smoking known as vaporization. With a vaporizer -- the Volcano brand is the best known -- users heat marijuana to a temperature sufficient to vaporize the cannabinoids but insufficient to spark combustion and most of its associated noxious gases. The vapors are captured in a balloon and then inhaled.
Medical marijuana is giving activists a chance to show how a legitimized pot business can work. Is the end of prohibition upon us?
Irv Rosenfeld is one of four U.S. citizens who get their medical marijuana from the federal government.
Stephen DeAngelo founded Harborside to show that a marijuana dispensary could make a positive contribution to a community.
(Fortune Magazine) -- When Irvin Rosenfeld, 56, picks me up at the Fort Lauderdale airport, his SUV reeks of marijuana. The vice president for sales at a local brokerage firm, Rosenfeld has been smoking 10 to 12 marijuana cigarettes a day for 38 years, he says.
That's probably unusual in itself, but what makes Rosenfeld exceptional is that for the past 27 years, he has been copping his weed directly from the United States government.
Every 25 days Rosenfeld goes to a pharmacy and picks up a tin of 300 federally grown and rolled cigarettes that have been sent there for him by the National Institute of Drug Abuse (NIDA), acting with approval from the U.S. Food and Drug Administration.
Rosenfeld smokes the marijuana to relieve chronic pain and muscle spasms caused by a rare bone disease. When he was 10, doctors discovered that his skeleton was riddled with more than 200 tumors, due to a condition known as multiple congenital cartilaginous exostosis. Despite seven operations, he still lives with scores of tumors in his bones.
Rosenfeld is one of four people in the United States whom the federal government supplies with medical marijuana. Each is a living anomaly because, officially, the U.S. Drug Enforcement Administration, NIDA, and the FDA all take the position that marijuana has "no currently accepted medical use."
That's the only way federal law can continue to classify marijuana, like heroin, as a "Schedule I controlled substance," forbidden from being prescribed by doctors. (Numerous dangerous, psychoactive, and addictive opium derivatives, by contrast, are more leniently classified as Schedule II drugs, allowing prescription use.)
Over the years the government's position has become progressively more embattled, if not untenable.
Thirteen states now have laws that let residents use marijuana medicinally, typically to alleviate chronic pain (particularly nerve pain caused by diabetes, AIDS, and hepatitis); manage movement disorders and muscle spasticity (especially for multiple sclerosis patients); as an anti-nausea and anti-vomiting agent (for those, say, undergoing chemotherapy); and as an appetite stimulant (yes, as in "the munchies") for those with wasting diseases like AIDS and cancer.
Another 15 states are weighing legislation or ballot initiatives that could turn them into medical marijuana states by next year.
The acceptance of medical marijuana has implications that extend far beyond helping those suffering from life-threatening diseases. It is one of several factors -- including demographic changes, the financial crisis, and the widely perceived failure of the war on drugs -- reopening the country's 40-year-old on-again, off-again shouting match over whether marijuana should be legalized.
This article is not another polemic about why it should or shouldn't be. Today, in any case, the pertinent question is whether it already has been -- at least on a local-option basis. We're referring to a cultural phenomenon that has been evolving for the past 15 years, topped off by a crucial policy reversal that was quietly instituted by President Barack Obama in February.
0:00 /2:41Hookah business smokin'
First, some necessary background. Under President George W. Bush (and under President Bill Clinton before him, for that matter), the U.S. Justice Department treated state medical marijuana laws as nullities. Such laws were contradicted and therefore preempted by federal drug laws, the Justice Department reasoned, and the U.S. Supreme Court upheld that position in 2005.
Accordingly, the federal government has periodically raided and prosecuted defendants who at least claimed to be complying with state medical marijuana laws, and when it did, defendants were forbidden from telling juries about the existence of those laws.
In late February, President Obama signaled a new approach. His attorney general, Eric Holder, confirmed at a press conference that he would no longer subject individuals who were complying with state medical marijuana laws to federal drug raids and prosecutions.
This understated act -- a simple pledge not to act, really -- could have enormous consequences. It potentially leads to exactly the same endpoint as the Twenty-First Amendment, which repealed the federal prohibition on alcoholic beverage sales.
Here's how. When states make a legal loophole allowing medical use of marijuana, they must grapple with the messy question of what precisely constitutes medical use. After all, doctors regularly prescribe powerful drugs like Valium, Viagra, Prozac, and -- give us a break -- Botox to patients who are hardly at death's door.
If a state doesn't tightly limit what "medical use" means, the camel can get its nose under the tent.
That's what happened in California. Like most medical marijuana states, California permits doctors to "recommend" marijuana use for patients who suffer from specific serious diseases. (Drafters of the law avoided the word "prescribe" in an attempt to sidestep conflict with federal law.)
California's law then adds a catchall provision that lets doctors also approve marijuana use for "any other illness for which marijuana provides relief." In practice, doctors -- largely protected from second-guessing by confidentiality privileges -- have been free to make the final call as to which conditions those might be.
This is, after all, the norm vis-à-vis medicines. Once a pharmaceutical has been FDA-approved for one use, doctors can lawfully prescribe it for other, so-called off-label purposes, even though the drug has not yet been certified as safe or effective for them.
Accordingly, California doctors are authorizing patients to take marijuana to relieve such ailments as anxiety, headache, premenstrual syndrome, and trouble sleeping. "You could get it for writer's block," comments Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws.
Some California doctors voluntarily report the breakdown of patient medical conditions for which they have approved marijuana use in the Alameda, Calif., medical newsletter O'Shaughnessy's.
They commonly report that more than a quarter of their marijuana authorizations have been prompted by patients suffering from conditions like "anxiety" or "insomnia." (The most common complaint is "chronic pain.")
As a result, in most of California's coastal metropolitan areas, marijuana is effectively legal today. Any resident older than 18 who gets a note from a doctor can lawfully buy the stuff, and doctors seemingly eager to write such notes, typically in exchange for a $200 consultation fee, advertise in newspapers and on websites.
There are an estimated 300,000 to 400,000 medical marijuana patients in the state now, and the figure is rapidly growing.
More astonishingly, there are about 700 medical marijuana dispensaries now operating in California openly distributing the drug.
These dispensaries -- called "compassionate-care clinics" by the solemn and "pot shops" by the skeptical -- are decidedly outpatient facilities, with not a few patients arriving on bicycles, roller skates, or skateboards. (They often get discounts for doing so, because it's greener than using a fossil-fuel-powered car.)
The dispensaries sell marijuana and its concentrated resin forms, hashish and kif, sometimes alongside a range of enticing, non-inhaled alternatives, including marijuana-imbued brownies, cookies, gelati, honeys, butters, cooking oils ("Not So Virgin" olive oil), bottled cold drinks ("enhanced" lemonade is the most popular), capsules, lozenges, spray-under-the-tongue tinctures, and even topically applied salves.
In Los Angeles a high-end three-store chain called the Farmacy employs a pastry chef to oversee production of all its baked goods. Most dispensaries also sell potted plants and seeds for patients who are either thrifty or entrepreneurial.
All these establishments are engaged in what federal penal statutes still humorlessly define as narcotics trafficking. The dispensaries' affiliated marijuana farms and plant nurseries are sometimes of sufficient size to subject operators to mandatory-minimum five-year federal prison terms.
And this, mind you, is a situation that evolved almost entirely during the Bush administration, when the U.S. Drug Enforcement Administration was still routinely threatening dispensary landlords with forfeiture of their premises, periodically raiding clinics and seizing inventories, and criminally prosecuting the most brazenly abusive operators.
Luke Scarmazzo, who aired a rap video on YouTube two years ago boasting of all the money and great sex he was getting from running the California Healthcare Collective in Modesto, Calif. -- "Fuck the feds!" was one ill-advised lyric -- was sentenced in federal court this past December to almost 22 years of imprisonment on a continuing criminal enterprise conviction. (He has appealed.)
While the situation in California is unusual, it's becoming less so. There are now 15 dispensaries in Colorado, according to weedmaps.com, one of many online marijuana dispensary and physician ("pot-doc") locator services. In Oregon nearly one in four active physicians has authorized at least one of his patients to grow marijuana for medical use.
New Mexico hopes to have the nation's first state-licensed medical marijuana farm and distributorship up and running by the time this article is published. New Mexico's law was enacted two years ago, but state officials hadn't dared implement it until Attorney General Holder blew the all clear in February.
This is the sense in which President Obama's understated pledge not to interfere with state medical marijuana laws potentially achieves for that intoxicant what the Twenty-First Amendment accomplished for beer, wine, and booze during the Great Depression.
Repeal, remember, simply returned to the states the right to decide whether to permit alcoholic beverage sales, and, if so, when and how. If a state permitted sales, it could also enforce minimum- age requirements, limit store hours, set zoning restrictions, and levy taxes. If it prohibited sales, it could bask in righteousness but exercise no control over the traffic that would occur anyway.
Over time nearly every state fell in line behind the tax-and-regulate model. (During Prohibition, federal law did contain an exception allowing alcoholic beverage sales for medical purposes. Nevertheless the case for medical booze was never compelling, and after repeal no state chose to condition the legality of alcohol sales upon a showing of medical need.)
"I think we're going to have exactly that kind of local option with marijuana [that we now have with alcohol]," says Keith Stroup, 65, NORML's founder, two-time past executive director, and current legal counsel. "Once that happens it will be like gambling."
Initially only Nevada permitted gambling, and then it was just Nevada and New Jersey. "But over a period of time," Stroup says, "the morality part of the issue kind of dissipated, and there were more and more needs for new revenue, and today almost every state in the country allows legalized gambling."
Marijuana activists thought they were close to legalization once before. From 1973 to 1978 activists won decriminalization in 11 states. ("Decriminalization" is a grab-bag term but usually refers to schemes under which first-time possession of small quantities of marijuana becomes a noncriminal violation, akin to a parking ticket. Decriminalization falls short of legalization, in that sale and distribution remain serious felonies.)
In 1977, President Jimmy Carter endorsed a federal decriminalization bill. But the bill went nowhere, and soon the movement was all but obliterated by the return swing of the cultural pendulum, now known as the Reagan Revolution. There would be no new state or federal marijuana reforms for the next 16 years.
"Here's what's different now," asserts Ethan Nadelmann, the head of the Drug Policy Alliance, which favors marijuana legalization on a tax-and-regulate model. "First, in the late 1970s no more than 30% of the American public supported making marijuana legal. Now it's breaking 40%."
That jump reflects an important demographic change, Nadelmann notes. "Back then there was a whole older generation of Americans who didn't know the difference between marijuana and heroin," he says. "Now that generation is mostly gone. The people in power are baby boomers, a majority of whom actually smoked marijuana."
The past three Presidents have all more or less admitted trying the drug, Nadelmann continues, and the current one, when asked if he inhaled, famously retorted, "I thought that was the point."
Beyond the demographic change, there is a perception that after 40 years of blood, sweat, and tears, the war on drugs -- formally declared by President Richard Nixon in 1969, a month before the Woodstock festival -- has failed to reduce the availability of illegal drugs, has enriched and empowered organized-crime gangs, and has subjected millions of people to arrest who pose little threat to anyone but themselves.
On top of that, we're now mired in the worst economic environment since the Great Depression, which makes the prospect of collecting taxes on marijuana sales as alluring to contemporary politicians as beer, wine, and liquor taxes looked to President Franklin Delano Roosevelt and his party when they took office in 1933, the year Prohibition was repealed.
Assuming a national consumer market for marijuana of about $13 billion annually, Harvard economist Jeffrey Miron has estimated that legalization could be expected to bring state and federal governments about $7 billion annually in additional tax revenue, while saving them $13.5 billion in prohibition-related law enforcement costs.
In California, where the fiscal crisis is so grave that the state has had to issue vendors more than $1 billion in IOUs, a Field Poll published in April showed that 56% of the state's population favored legalizing marijuana, prompting Gov. Arnold Schwarzenegger to call for an "open debate" on the question. A legalization bill has been introduced in the state legislature, and the state board of equalization has estimated that if passed, it would bring in $1.4 billion in new revenue, a seemingly conservative estimate.
It's even possible that legalization would reduce national health-care costs, by easing demand for costly pharmaceuticals.
In the most recent issue of O'Shaughnessy's, one doctor reported that his cannabis patients had either stopped or cut back their use of "analgesics of all kinds [including] Tylenol, aspirin, and opioids; psychotherapeutic agents including anti-anxiety medications, anti-depressants, anti-panic, obsessive-compulsive, anti-psychotic, and bipolar agents; gastrointestiminal agents including anti-spasmodics and anti-inflammatory medications; migraine preparations; anticonvulsants; appetite stimulants; immuno-modulators and immunosuppressives; muscle relaxants; multiple sclerosis management medications; ophthalmic preparations; sedative and hypnotic agents; and Tourette's syndrome agents."
"Medical marijuana is God's little joke on the [marijuana] prohibitionists," says Richard Cowan, 69, a longtime legalization activist who claims he's smoked almost every day since 1967. "There is clearly a medical need, and it ranges from minor to life-saving.... From my perspective, the dividing line between medical and nonmedical should not be decided by the police."
Medical marijuana is clearly the crowning factor making things different this time. Not only is it changing perceptions of the drug, but it has also given legalization advocates in California a first-ever opportunity to devise and showcase a business prototype.
They've been afforded the chance to show a skeptical public that a safe, seemly, and responsible system for distributing marijuana is possible. If they succeed, they'll convince the fence sitters and lead the way to a nationwide metamorphosis.
If they fail, the backlash will be savage. If communities cannot adequately regulate the dispensaries, they'll descend into unsightly, youth-seducing, crime-ridden playgrounds for gang-bangers, and this flirtation with legalization will conclude the way the last one did: with a swift and merciless swing of the pendulum.
Pot's medical history
Marijuana, whose botanical name is cannabis, has been used medicinally -- and as an intoxicant, of course -- for thousands of years in Eastern cultures. It is believed to have been introduced to Western medicine in the early 19th century by a British doctor, W.B. O'Shaughnessy, who learned about it while stationed in India (and for whom the medical cannabis newsletter is named).
Several well-known pharmaceutical companies, including Eli Lilly (LLY, Fortune 500), sold cannabis in powdered or tincture forms in the early 20th century as a painkiller, antispasmodic, sedative, and "exhilarant." (For this article Fortune asked Eli Lilly for historical details on its cannabis sales, but a spokeswoman responded, "Due to competing priorities, we ... are unable to facilitate your query.")
Though cannabis remained listed in the U.S. Pharmacopeia -- a standard desk reference for drugs -- until 1942, its use in Western medicine began declining in the late 1800s, according to a history of cannabis written by Harvard psychiatrist Lester Grinspoon titled "Marijuana: The Forbidden Medicine."
The decline, Grinspoon writes, was due in part to the rise of more stable and effective pharmaceuticals -- though many of them later proved to have grave potential side effects -- and because modern hypodermic syringes could deliver faster pain relief using opiates. (Opiates were soluble; cannabis wasn't.)
Then, in the early 1900s, states began outlawing cannabis, which had become associated in legislators' minds with violent crime and psychosis. The drug was then being used in the U.S. mainly by Mexican migrant workers in the West and African Americans in the South, so apprehensions about it may have been intertwined with racial and ethnic fears. In 1937 the federal government, over the objections of the American Medical Association, effectively outlawed cannabis.
Modern-day medical assessments of marijuana's properties have not corroborated the outsize dangers that lawmakers had attributed to the plant. While it is a "powerful drug," concluded an Institute of Medicine report conducted in 1997 at the behest of the White House Office of National Drug Control Policy, its "adverse effects ... are within the range of effects tolerated for other medications."
Yes, someone who is high on marijuana shouldn't drive -- his motor skills and mental powers are impaired -- but that's true of alcohol and many prescription drugs too.
The long-term risks to chronic users appear to center mainly on the generic dangers of smoking (respiratory disease and possibly lung cancer) and upon the "mild and short-lived" withdrawal symptoms that a minority of marijuana users experience, according to the IOM experts. They considered marijuana less addictive than tobacco, codeine, or Valium.
Still, many doctors are squeamish about recommending marijuana to patients -- putting aside issues of legal liability. To begin with, most pharmaceuticals consist of a single, purified chemical compound. Such drugs are susceptible to double-blind, placebo-controlled testing, and once they are approved, doctors can prescribe known dosages.
Marijuana, in contrast, consists of the dried, ground-up flowers of a highly variable plant. It is made up of at least 400 compounds, including more than 60 that are unique to cannabis, known as cannabinoids, several of which are believed to have therapeutic effects. The proportions of these compounds vary greatly from plant to plant. A plant may attract harmful molds.
Lighting a match to the mix then introduces a whole new set of variables. Finally, smoking -- even putting aside its health risks -- is an idiosyncratic delivery system. Everyone smokes differently, so one never knows how much of which compounds the patient is receiving. These factors all make marijuana hard for researchers to test meaningfully and hard for doctors to prescribe confidently.
Accordingly, even those doctors who recognize the therapeutic powers of marijuana often prefer the notion of looking for one or two key active ingredients in it, isolating them, and then devising a delivery system that would not involve smoking.
And that's been done. In 1986 the FDA approved a synthetic version of what has long been recognized to be the main psychoactive ingredient of marijuana -- delta-9-tetrahydrocannabinol, or THC. After rigorous testing, the FDA found THC to be safe and effective for the treatment of nausea, vomiting, and wasting diseases. This lawful, Schedule II drug, trade-named Marinol, is taken orally, by capsule.
The trouble is, for many patients Marinol turns out to be inferior to good old-fashioned pot. Smoked marijuana is much faster acting and, as a consequence, easier for patients to control in terms of dosage. The patient inhales as much as he needs and then stops. In contrast, with a THC pill the patient can easily ingest more than he can handle.
"Oral THC is slow in onset of action but produces more pronounced, and often unfavorable, psychoactive effects that last much longer than those experienced with smoking," according to a 2008 report published by the American College of Physicians. (Incidentally, the FDA-approved warnings for Marinol -- pure THC -- do not flatly forbid patients from driving under its influence. Rather, they simply caution patients not to do so "until it is established that they are able to tolerate the drug and to perform such tasks safely.")
Still, despite the disappointing performance of oral THC, many doctors want to continue exploring faster-acting THC delivery systems, including a skin patch or a suppository.
Meanwhile we're still awaiting hard proof that smoking marijuana can actually cause lung cancer. That evidence has proved surprisingly elusive, maybe in part because typical marijuana users smoke so much less than typical tobacco smokers.
In any case, marijuana users are increasingly turning to a means of inhalation that does not involve smoking known as vaporization. With a vaporizer -- the Volcano brand is the best known -- users heat marijuana to a temperature sufficient to vaporize the cannabinoids but insufficient to spark combustion and most of its associated noxious gases. The vapors are captured in a balloon and then inhaled.