Seized edible marijuana (Drug Enforcement Administration)

If you were groggily fumbling to make your child’s breakfast in the morning, are you sure you wouldn’t mistake a Pot Tart for a Pop Tart? Such child-friendly marijuana edibles were the subject a much-discussed editorial by Stanford Professors Robert MacCoun and Michelle Mello in yesterday’s New England Journal of Medicine.  Taking note of cases in which children have required emergency room care after ingesting these newly legal products, MacCoun and Mello call for stronger regulations, including clearer labeling, standardized serving sizes, child-resistant packaging and a cap on the potency of the marijuana in edibles.

The Drug Enforcement Administration long ago raided the California-based manufacturer of "Pot Tarts" and "Buddafingers." But as drug policy problems go, this one actually might be pretty complex. Opponents and advocates of marijuana legalization disagree on many things, but the importance of protecting children is not one of them.  The child-targeted cartoon character Joe Camel was banished to widespread applause, so how hard could it be to protect children again here?Harder than you might think, for four reasons.


(DEA)

First, to quote Al Gore Jr., “there is no controlling legal authority that says this is in violation of the law.”  Because edibles are food, the U.S. Food and Drug Administration would seem to have a potential role in regulating marijuana additives. But the complexities and contradictions of the current federal-state relationship regarding marijuana policy make it hard to see how a federal regulatory agency could promote clarity in this environment.  That leaves the problem to each state regulatory bodies to work out, and so far it’s not clear they agree with each other – or even among themselves – about how to respond.

Second, medical and recreational marijuana have largely being legalized through ballot initiatives rather than legislation. Depending on state law and the specifics (or lack of specifics) of each initiative, this can tie the hands of state regulators. It also has to be said that legalization initiatives are generally written by people who are skeptical of government, meaning that they are unlikely to build strong regulation into their proposals.

Third, although depriving violent criminals of illegal marijuana revenue is a public good, it at the same time means that new legal businesses gain resources to weaken the regulatory process through lobbying.  The nascent marijuana industry is already hiring lobbyists and making campaign contributions, and may not welcome MacCoun and Mello’s proposals. Indeed, when MacCoun raised the issue at the International Drug Policy Reform Conference in Denver, he got a “frosty reception” from an audience of activists and entrepreneurs.

Finally, free market capitalism is a fast-moving, innovative thing. Every drug policy analyst expected that marijuana brownies would be a feature of the legalized U.S. marijuana market, but the speed at which the industry developed near carbon copy branding of child-friendly marijuana edibles caught many people by surprised. The good news though is that the half dozen or so states that are likely to legalize in the next few years can learn from others’ experience and bake in regulations to their legalization proposals that constrain this type of edible.

Keith Humphreys is a Professor of Psychiatry and Director of Mental Health Policy at Stanford University.  Follow him on Twitter @KeithNHumphreys