Preemption in Marijuana Policy: Never a Good Idea for Public Health

There has been an aggressive move to legalize recreational marijuana through ballot initiative by national marijuana advocacy groups after four states, Colorado, Washington, Alaska, and Oregon, legalized retail sales in 2012 and 2014 respectively.
 
Several states, including California, likely will consider similar legislation for the 2016 presidential election. The National Organization for the Reform of Marijuana Laws (NORML) and their local chapters, among others, are pushing legislation that would preempt local jurisdictions from taxing and regulating the sales, production, and cultivation of marijuana.  Health groups in California (and, perhaps, elsewhere) have been absent from these early policy discussions.
 
In order to ensure a ballot initiative that promotes public health standards, including granting local authority to cities and counties to regulate marijuana, the health groups must get engaged now rather than wait until November 2016. 
 
Despite the significance of local control of marijuana, little attention has been paid to the issue. Policy discussions in California have been centered on how to appropriately tax marijuana in order to prevent fueling the black market.
 
There has been less debate on whether local governments should be allowed to further restrict the marijuana industry, including a total prohibition of sales. Some proponents of marijuana legalization argue for preemption on the grounds that there should be one uniform statewide law while others argue that local governments should be able to determine the needs of their communities.
 
Currently, Colorado grants authority to local governments to ban retail sales of marijuana whereas Washington is reworking its law to determine whether cities and counties should be afforded that right. Policy options in Washington may require local governments to circulate a petition and run a local initiative for constituents to determine if they would like to opt-in or opt-out of the marijuana business.  Doing so would substantially increase the cost of local action, something that will become increasingly difficult if local health advocates are faced with marijuana special interests who are making more money thanks to preemption of local control.
 
Robert Mikos, law professor at Vanderbilt Law School, has written on the issue of local control, here:and here.  Mikos argues that local control of marijuana, like alcohol, has effects beyond the control of local jurisdictions that adopt these policies and suggests that state governments are more adept at controlling recreational substances. He concludes that local governments should not be permitted to opt-out of legalization, citing that policy advocates would have to lobby more levels of government to ensure their "preferred policy outcome", issues of compliance, and residents and tourists flocking to marijuana hubs, including the attendant costs (e.g. increased traffic).  From a public health point of view when talking about regulating a substance that someone is making a lot of money selling these are precisely the benefits of local action.
 
Similar to the regulation of tobacco products, state governments should not preempt cities and counties from regulating the retail sales environment through marijuana retail licenses. A marijuana retail licensing law would require businesses to obtain a license from the government in exchange for selling their products to consumers. An annual fee for administration and enforcement could be included in a local retail licensing law as well as other innovative policies such as restricting retailer density, prohibiting the sale of flavored products (that largely appeal to children), the distribution of coupons and price promotions, and prohibiting point-of-sale advertising and marketing {Details}.
 
Preemption is never a good policy choice in terms of protecting the public health interest.
 
In 2011, the Institute of Medicine released a report on preemption which advised against federal and state preemption "unless there was a compelling reason to the contrary." However, "compelling reasons" to preempt state and local authority rarely benefit public health.  Years of preempting local governments from regulating the sales and usage of tobacco products demonstrate that local governments must have the authority to regulate retail marijuana. The tobacco industry, and likely the emerging marijuana industry, understands that it is less powerful at the local level. (source1, sourcec2) and through preemption can bring the policy debate back to the state legislature where it can overcome the resources of health advocates through direct lobbying and campaign contributions, which influence legislative behavior.{source1, source2).
 
It is imperative that the public health community insert itself into the ongoing debate over marijuana legalization to ensure that the solution to the misdirected war on drugs not replace an incarceration disaster with a public health disaster.  Preventing bad legislation now will be much easier than cleaning up the mess later.