The Government has a marijuana problem. And, as is so often the case, alcohol may be the solution, writes Dr Eric Crampton of the NZ Initiative.

The Labour-Green coalition agreement promised a referendum on the personal use of cannabis at or before the next election. The next election must be held by 21 November 2020.

Two years is a long time in politics but can be a short time in policy. Asking a decent referendum question requires working out the policy.

A referendum question asking simply “Should the personal possession of cannabis remain illegal?” provides nothing concrete about what happens if voters say no. It does not provide enough detail about what the new regime would look like.

Lack of information about important details invites people to imagine worst-case scenarios. But laying out all the details would make for a ballot too long to read.

So experts like Graeme Edgeler suggest the only sensible question to ask voters would be whether they prefer the current Misuse of Drugs Act 1975, or whether they prefer to allow the sale and supply of cannabis as provided for in draft legislation.

Source: Graeme Edgeler, Twitter.

Providing these options requires drafted legislation that is ready far enough in advance of the referendum to give voters a chance to weigh the options.  

The general election is mid-November 2020. The election season will then be running from August onward. If voters should have a couple of months with the legislation before the election campaign really gets going, the legislation would need to be ready by June 2020 – about 19 months away.

While that might seem like a long time, recall that the Government’s last attempt to build a new regulatory framework for psychoactive substances took about that long.

In late August 2011, the Cabinet Business Committee asked Associate Minister Peter Dunne to report back with policy proposals for a new ‘legal highs’ regime by end-June 2012. Those proposals formed the basis for legislation introduced in late February 2013 – about 18 months later, with details yet to be hammered out in select committee.

And the Government has proposed including a citizens’ jury as part of the law reform process. A citizens’ jury can be a great way of strengthening informed community consultation as part of the process, but it will not speed things up.

Time is then rather tight if the government wishes to bring a fully fleshed-out option for voters to consider. It is even tighter if the government prefers to keep the cannabis referendum separate from the general election.

At last Friday’s Cannabis Referendum Conference, Labour MP and former head of the Police Association Greg O’Connor and I discussed his experiences in policing drugs, his study tours of places with legal access to cannabis, and implications for policy here. We agreed how the decriminalisation of personal possession of cannabis is not enough as supply would remain in the black market, with all the harms that come with illegal markets.

Setting out a new regulatory framework for the legal sale and supply of cannabis could easily be a rather big job. Big new regulatory frameworks have the same problem as a lot of other initiatives. It can be developed quickly, it can be developed well, and it can be developed at reasonable cost: but you can only pick two of those options.

For example, MBIE developed an excellent regulatory framework enabling New Zealand’s new space industry, and did it in a hurry, but it required the dedicated attention of some of Wellington’s most competent, and consequently scarce and valuable, public servants. Government cannot afford to run too many such projects simultaneously.

Fortunately, there’s a way of short-circuiting that trilemma. Building on existing regulatory frameworks lets policy lean on the work that has already been done elsewhere.

Cannabis is not more harmful than alcohol; any regulatory framework for regulated markets in cannabis should not be stricter than the one already in place for alcohol. New Zealand’s rules for spirits could provide an excellent starting point for building regulated markets for cannabis.

Many cannabis advocates strongly favour being able to grow their own plants at home. Some would wish to ban commercial supply, worrying that it might pose a threat to informal supply networks. But alcohol regulation has already faced that problem, and rather successfully.

Anyone can brew their own beer or distil their own spirits for their own use, or for informal sharing with friends; commercial supply requires complying with the rules facing commercial suppliers and paying excise. In fact, a thriving home brewing scene formed the basis for New Zealand’s spectacularly successful craft brewing industry.

Similarly, age restrictions in regulated markets for cannabis could be based on existing age restrictions in regulated markets for alcohol.

Bottle shops train their staff to check IDs, knowing that selling alcohol to a minor can mean fines and loss of license. Licensed cannabis retailers could face obligations that parallel the licence requirements for spirits retailers.

And remember not to make the perfect the enemy of the good: do dealers in current illegal markets check ID at all?

Want to prevent cannabis suppliers from directing their marketing at kids? Existing advertising and marketing restrictions on alcohol could serve as a model.

Want to make sure cannabis consumers know the potency of their product? Alcohol has to report product concentration on the bottle, along with the number of standard drinks; cannabis products in legal markets elsewhere report concentrations of THC and CBD, along with concentrations of THCA and CBDA.

Want to make sure councils are able to set rules appropriate to their areas and implement smoking-ban areas around parks? Local alcohol policies do that for alcohol; councils can set up liquor-ban areas.

A lot of the problems any regulated cannabis regime would need to solve have already been dealt with in our existing alcohol regulations. The rules may not be perfect, but they are the ones with which we are familiar.

Rather than having to imagine how entirely novel regulatory approaches might work, voters could draw parallels with existing and familiar institutions.

And basing draft legislation for regulated markets in cannabis on current regulations for spirits would give us a shot at hitting the referendum deadline.

Leave a comment