Learned Observations in New Market Regulated Cannabis Policy

Forbes

4 days ago

Original Title: There Is A Road, No Simple Highway: Learned Observations In New Market Commercial/Regulated Cannabis Policy Development
The development of cannabis policy is an ever-evolving field, which has been sprung from night into the sun. See June, 2016: "Sprung From Night Into The Sun: An Examination of Colorado's Marijuana Regulatory Framework Since Legalization," Kentucky Journal for Equine, Agricultural and Natural Resources, Volume 8, Issue No. 2. The general tenets of the initial regulatory framework governing the regulated U.S. dispensary system, which remains federally illegal, was established (on average) a decade ago. Much has happened since then; markets have risen and fallen; the global cannabis supply chain has developed substantially; the plant is becoming commoditized. This so-called U.S. dispensary framework was a 'deal' between policy makers and stakeholders that would never be the accepted consensus today due to its oppressive taxation standards and unfriendly (to the market) regulations, which often go unnecessarily too far. Yet, that is the system that so many in the U.S. industry accept as the 'way it is supposed to be.' But the evolution of the global cannabis supply chain tells a different tale. In any event, much is overlooked when examining the policy pathway from grey/illicit market to regulated market.
Following my graduate program at the University of Colorado at Denver's Graduate School of Public Affairs many years ago, I have spent the better part of the past twenty years working on cannabis policy in countless jurisdictions. After working internationally with dozens of governments and industry stakeholders over the most recent ten year period, I recognized that it is important to dissect and loosely examine a few things relevant to universal cannabis policy development – (i) the 'Why?'; (ii) the Existing Five Policy Lanes Countries Employ for Regulating Cannabis and its Byproducts; (iii) the Three Phases of Regulation; and, (iv) the Measurement of 'success.'
First, it is essential to understand that every jurisdiction has a unique 'why?' as to its rationale for legalizing cannabis. These are never the exact same. Sometimes, it is to effectuate social justice of criminal justice reform; sometimes, it is to spur economic development, grow the tax base, and/or job growth; sometimes, it is part of a larger package of human rights reforms (such as what occurred in Uruguay); sometimes it is to create lawful pathways for the medical use of the plant; and, sometimes it is a combination of all of these factors, and others that may not seem so obvious.
This fact, coupled with unique language barriers, cultural preference/differences, and the like, create an environment where anything can happen. But are there some commonalities in the international approach to cannabis policy development?
2.5 Policy Lanes
Whether it is the primary impetus or not, economics plays a substantial part in assessing the mode and method to progress with cannabis legality. And an economic analysis is a good starting point. When estimating the Total Addressable Market (TAM) for the cannabis plant, it is essential to approach it as a commodity. A commodity market emerges when infrastructure, consumer demand, and a supportive regulatory environment align to create an efficient supply chain constituting various outputs of a known value.
In the case of cannabis, this regulatory environment can be categorized into five (5) distinct "Policy Lanes," each shaping how the plant is produced, processed, and marketed. What I mean by 'Policy Lanes' is that there already exist viable regulatory pathways that can easily apply to cannabis regulation, without creating an entirely new 'cannabis legality' framework. The hypothesis being that it is extremely difficult, time consuming, and less desirable to enact entirely new comprehensive cannabis legislation rather than utilizing existing regulatory pathways (e.g., 'Lanes') that already can address the various and distinct uses of the cannabis plant – whether that be hemp or marijuana. My long term experiential observation is that choosing existing Lanes, rather than seeking to pass band-new cannabis legislative frameworks is far easier, fast, and preferable to the private sector, and to policy makers, and this is grounded in the fact that we really do not have a cogent universal model as to how to best regulate the uses of materials from the entire plant (be it hemp- or marijuana- sourced compounds). And so -- efficiency, policy-speak, and private market preference generally can all agree on using existing Lanes, rather than evaluating, drafting, creating, enacting, delegating, and organizing entirely new pathways.
In other words, using what already exists and placing cannabis within those Lanes is preferred. There is no need to reinvent the wheel or to craft a 'perfect' policy solution or, worse yet, cutting and pasting from other unrelated jurisdictions. Instead, adopting features and placing oversight and authority with agencies from already existing Lanes/programs that have the same measure of success (see below) has been far more successful and expedient.
Understanding these Policy Lanes is crucial for optimizing the supply chain and maximizing market potential. Each lane represents a unique pathway through which cannabis products reach end markets and identifying overlaps and conversion opportunities between these lanes is key to market development. By recognizing how regulatory frameworks influence market participation and access, stakeholders can better align their strategies to capture emerging opportunities and achieve long-term growth in the cannabis industry.
To this end, it is important to note that the global landscape of cannabis policy is evolving rapidly, driven by increasing recognition of the plant's diverse applications across various sectors. However, the development of comprehensive cannabis regulations requires a structured approach that accounts for the different ways in which cannabis and its derivatives can be commercialized. This framework for understanding cannabis regulation through five distinct Policy Lanes: (1) over-the-counter cannabis; (2) general-use medical cannabis; (3) wellness and food products/nutraceuticals; (4) industrial applications; and (5) illicit markets. Each of these lanes presents unique regulatory challenges and opportunities, necessitating tailored policies to ensure both public safety and economic viability. Generally speaking, laws and regulations already exist that address each of these five Policy Lanes. And if the distinct frameworks already exist, it is far better to utilize them than create brand-new ones – hear that U.S. cannabis industry?
The first Policy Lane pertains to over-the-counter cannabis, commonly referred to as adult use cannabis. This lane involves the commercialization of cannabis in its natural state for personal use. Governments opting to regulate cannabis in this category must implement policies that will ensure product safety, quality control, and consumption limitations to a lesser degree than General-Use Medical cannabis requires. Such regulations often mirror those applied to other consumer goods, requiring robust oversight mechanisms to protect public health while facilitating access to the market. These consumer goods include alcohol, tobacco, and dietary supplements, which are similarly regulated to balance safety concerns with consumer accessibility and market efficiency.
The second Policy Lane is bifurcated between general-use medical and pharmaceutical cannabis, which encompasses the development of cannabis-based medicines. General-use medical-grade standards. This regulatory category involves rigorous clinical testing, precise dosing, and general-use medical prescriptions authorization by a qualified general-use medical practitioner licensed in the jurisdiction of issuance. Policies governing this lane must establish comprehensive frameworks to support research and development, ensuring that cannabis-derived general-use medical products meet the stringent production, safety, efficacy, and traceability requirements expected of general-use medical products. This lane differs significantly from over-the-counter cannabis, focusing on therapeutic applications and requiring a higher degree of regulatory oversight, and one which qualifies the purchaser based on some form of general-use medical professional referral (e.g., prescription or recommendation).
The third Policy Lane focuses on wellness and food products derived from cannabis, particularly cannabinoids sourced from industrial cannabis[1]. This category has seen substantial growth in recent years, especially in jurisdictions like the United States following the passage of legislation such as the national agricultural policies adopted in 2014 and 2018 ('commonly referred to as the 'Farm Bills'). These policies have facilitated the extraction and commercialization of non-psychoactive cannabinoids, such as cannabidiol (CBD), for use in consumer products, as well as many other non-psychoactive cannabinoids (e.g., CBG and CBN). Regulatory agencies, including the U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture (USDA), play a crucial role in developing guidelines for the production, labeling, and marketing of wellness and food products. Effective regulation in this lane is essential to ensure consumer safety and to support the growth of the industrial cannabis-derived product market.
The fourth and most expansive Policy Lane pertains to industrial applications of cannabis, commonly referred to as industrial hemp. This lane encompasses the use of cannabis as an agricultural commodity in a wide range of industries, including the production of plastics, fuels, textiles, paper, automotive, construction and electronics. Estimates suggest that there are over 25,000 potential uses for industrial hemp, highlighting its versatility and economic potential. Policies supporting this lane must address agricultural standards, supply chain logistics, and the development of markets for hemp-based products without a direct method of consumption by a natural person. Industrial hemp policy is more mature globally yet is still evolving. Industrial hemp presents significant opportunities for sustainable development and climate change mitigation, making it a critical component of any comprehensive cannabis policy framework.
The fifth Policy Lane includes the illicit unregulated and illegal sale of cannabis. This involves the use of untested and unproven products in the marketplace by individual users and constitutes criminal behavior. This Policy Lane has been regulated by and through prohibition and penalties both domestically and across international boundaries. This lane directly competes with the legal activities described above relative to the total addressable market described in this report; it cannot be overstated that biases rooted in this lane must be overcome to support the desired transitory effect. The key to addressing the unregulated and illicit sale of cannabis comes via providing consumers access to legal cannabis products and incentivizing them to participate legally by keeping barriers to access minimal. While the negative impacts of this Lane have been well documented in the 19th and 20th centuries, it is worth admiring the fact that this Lane offers a source of demand that can be leveraged to support various, positive returns on investment for public and private entities alike
The importance of framing cannabis regulation within these five lanes lies in its practical application. Regulatory frameworks must not only address public health and safety concerns but also foster an environment conducive to economic growth and innovation. The commercial viability of cannabis-related industries relies on attracting investment, advancing research, and developing the necessary infrastructure to support a thriving market. By adopting a structured, multi-lane regulatory framework, governments can achieve a balance between public safety, economic opportunity, and social equity.
The proposed framework also addresses a common challenge in cannabis policy reform: the emphasis on social justice as the primary driver of legalization efforts. While social justice considerations are undeniably important, they do not provide a sufficient foundation for building comprehensive legal, regulatory, and commercial frameworks. Successful cannabis reform must integrate social justice goals with practical regulatory policies that facilitate the development of sustainable industries. The five-lane framework offers a pragmatic approach that resonates with both policymakers and the business community, ensuring that cannabis reform is both equitable and economically viable.
In conclusion, understanding the tradeoffs and impacts of these Five Policy Lanes is essential for governments seeking to enact effective cannabis reform. The jurisdiction need not begin an entirely new paradigm from scratch, but rather can satisfy all stakeholders by using existing Lanes. Doing so will prevent unnecessary delays in timing/enactment, prevent polarization of policy concepts, and will allow existing government agencies to integrate the plant into its/their existing regulatory structures, while not requiring a new agency, new funding, or the like. Each lane requires a distinct regulatory approach tailored to the specific characteristics and risks associated with the products and applications within that category. Policymakers must recognize that a one-size-fits-all approach to cannabis regulation is insufficient, and that the successful commercialization of the cannabis plant depends on the careful navigation of these distinct policy lanes.
The five-lane regulatory framework for cannabis provides a structured approach to navigating the complexities of cannabis commercialization. By recognizing the distinct policy requirements for over-the-counter cannabis, general-use medical cannabis, wellness and food products, and industrial applications, governments can develop targeted regulations that promote public safety, economic growth, and social equity. This framework serves as a practical tool for policymakers seeking to enact comprehensive cannabis reform and unlock the full potential of the cannabis plant.
(iii) The 3 Phases of Cannabis Policy Development
I have observed that most jurisdictions do not have a (or even understand how to) plan for the development of the industry from inception to market-based correction (i.e., economic success); nor do many of them care. But this step is essential so as to not create a program destined to fail. As such, I have described the necessary phases for any jurisdiction in establishing a commercial marketplace are as follows:
To establish a clear and cohesive approach, it is essential to align the jurisdiction's existing legal framework. And the following tasks become essential:
These guidelines can ensure parity among participating jurisdictions and can harmonize access to international markets whilst eliminating most barriers to entry in advance; all-the-while tempering expectations of officials, stakeholders, and the public.
(iv) Measurement of 'Success'
And finally, before implementing a legalization measure with legislation and corresponding regulations, it is good to have an idea/definition of what 'success' means. In fact, it is not merely 'good,' but rather essential to identify the objectives and measurement thereof prior to proceeding on the enactment of a legislative scheme. Otherwise, how would one know if it is indeed successful, and this is important for politicians, agency heads, stakeholders, and the private sector.
Again, this goes to the 'Why?' (described above) in many cases. It is essential to have a common understanding of successful implementation. Is it elimination/reduction of the black market? Is it conversion of the illicit market to the regulated market? Is it based on tax revenue or economic factors? Is it social equity based?
And in the international sector, United Nations factors have been essential in defining success. Having experience with the UN Committee on Narcotic Drugs, it is an observation that purely economic factors are not a sufficient measurement of success. And purely social justice factors are also merely one isolated issue to be considered.
The more comprehensive manner in which to measure success is based upon the fact that public health is addressed/improved, national security is somehow improved, and most importantly, a combination of cultural change and conversion of the traditional market to the regulated market; the latter being the most all-encompassing bell-weather for this analysis. Bottom line is that 'success' must be defined at the outset or, like in so many jurisdictions that have proceeded without learned advisory, the program is left to dangle and this exposure often leads to the death of the experiment.
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Cannabis policy development is a road, but no simple highway. In fact, it is a wholly complex and esoteric process which has numerous jurisdiction-specific factors to consider. However, with some of the foregoing issues in the front of mind, the process can be achievable, measurable, and successful. I urge each jurisdiction experiencing challenges and/or considering embarking on this journey of cannabis legalization to work with experts who exhibit a track record of policy, regulatory, market, and international trade-based factors. Without that, programs will flounder, if not fail. Only time will tell. [1] Any cannabis cultivated cannabis with a verified THC allowance that varies by jurisdiction on a 0.2-1.0% threshold. This definition would control any use of the phrase 'cannabis' to be varieties/supply chains exceeding this THC threshold.